Court-Martial Defense in a Changed System: What You Must Know
If you’re under investigation or facing a court-martial, the standard advice from most military defense offices is: “Stay quiet, stay out of trouble, and check back once you’ve been formally charged.”
You might not be entitled to a free military lawyer until after charges are filed. And when you do get one, JAG attorneys are often swamped with other cases, walk-ins, PT requirements, and training obligations. They can’t meet with you early and they won’t proactively advocate for you or get updates from the prosecution. A civilian lawyer can begin advising and defending you the moment you learn you’re under investigation.
You can take that initial, limited advice and wait it out alone. Or you can hire a civilian military lawyer who will work with you from the beginning of the investigation through the end of the case.
The problem is that when you start looking for an attorney, you get hit with site after site screening you through chatbots and answering services. You see walls of AI slop, jargon, and acronyms. You see bogus claims of 95% success rates and lawyers who won’t say what they really charge. When you’re scared, confused, and alone, that’s the last thing you need. You’re looking for help, not another layer of bullshit.
What you really need is someone who will communicate in plain language and who understands the unique cultural and legal climate of each military branch. You need someone with a long track record defending cases like yours. You need someone who isn’t learning on your dime, trying to adapt to a revamped justice system modeled on federal court. For over 20 years, our military practice has run alongside our work in federal criminal court. We didn’t need time to adjust to these changes.
How Military Justice Has Changed
First, you need to understand how the system works now.
1. Prosecutorial Discretion
For decades, commanders decided whether to send cases to trial. That power is gone. Now, in serious cases, that decision belongs to the Office of Special Trial Counsel (OSTC).
OSTC is in charge. They prosecute felony-level cases. The military doesn’t classify cases as felonies and misdemeanors, but that framework helps explain what these prosecutors focus on. They don’t answer to your chain of command. They make charging decisions independently and run the prosecution themselves.
Cases OSTC handles: murder (Article 118), rape and sexual assault (120/120b), child pornography (134), domestic violence (128b), and other severe allegations.
What it means for you: The system demands a higher level of defense skill, off-the-record persuasion, and social intelligence. Your attorney needs to understand OSTC’s priorities and perspective. It’s essential that your attorney opens communications with OSTC as soon as possible. You should stay quiet, but your attorney can’t afford to.
2. Judge-Alone Sentencing
Until recently, you could ask for a jury (panel) of your peers to decide your sentence. That’s changed. Military judges now sentence in most trials, just like in federal court.
The advantage: Judges are more predictable and less susceptible to deciding a sentence based on emotion. That reduces the risk of a vindictive sentence in the worst cases, like those with child victims.
Our edge: We’ve been doing federal sentencing work for 20 years. We know how to frame arguments that resonate with a judge within the sentencing paradigm they use.
What People Get Wrong About the New System
When these changes took effect, most defense lawyers expected the worst. They didn’t see the potential advantages, and many still don’t.
Fewer weak cases: OSTC isn’t likely to push a potential loser to trial. Their job is to improve conviction rates, not just move more cases to court. That makes them more open to negotiation. It also gives us a better audience when we have favorable or exculpatory evidence. They won’t hold onto a case for optics and cover-your-ass purposes.
Early derailment: The best chance to stop a case is before trial, before or during the Article 32 hearing. The days of holding back your best evidence for an ambush at trial are over. But only if your lawyer knows how to use these opportunities.
How Our Experience Fits the New Model
We’ve handled military and federal trials together for over 20 years. We don’t know any civilian firm with our level of dual-system experience.
Why You Should Hire a Lawyer Before Charges Are Filed
Too many service members wait until charges are filed. They do what they’re told: stay out of sight, stay quiet, don’t get in trouble. Or they think hiring private counsel makes them look guilty, not realizing they already look guilty or they wouldn’t be under investigation.
But while you’re keeping a low profile, hoping not to make things worse, and your appointed attorney is juggling walk-ins, doing PT, and attending training seminars, investigators are working full-time with the prosecution. They’re not waiting. They’re building the case that will send you to jail, end your career, and leave you with lifelong baggage.
Our Early Action Strategy
We don’t wait. We contact the command, the legal office, OSTC, and the investigators. We make sure you’re not left in the dark while you’re doing your best to hold it together. We prevent the command from assigning you to humiliating details or treating you like you’ve already been found guilty. We stay ahead of the situation to make sure the right people know you’re represented and that we’re tracking how you’re being treated.
If there’s favorable evidence, we get it into the hands of someone who can actually act on it, which is usually base legal or OSTC. We do not count on law enforcement to play fair. We talk to the people who will ultimately make decisions about your case. We keep you updated, explain what’s happening, and give you someone to lean on who isn’t part of the system turning against you. When you’re in the crosshairs, relief is hard to find. We do our best to help you get it.
This is Not a (Paper) Drill: Don’t Waste Your Article 32 Hearing
If you have General Court-Martial charges, you have the right to a preliminary hearing where the prosecution has to satisfy a few legal requirements to justify taking your case to trial.
Those legal requirements are not hard to meet, so some attorneys waive this hearing, thinking it’s a waste of time, while others sleepwalk through it. Don’t let that be you.
It’s Not Really a Probable Cause Hearing
Too much attention gets paid to the phrase “probable cause hearing.” That language undersells what actually happens. A well-written Preliminary Hearing Officer (PHO) report doesn’t just check a few boxes. It often includes statements like:
“There is probable cause to believe the offenses occurred, and the charges are in proper form. However, the government is unlikely to meet its burden at trial due to [contradictory witness testimony, evidence credibility, etc.]. The evidence supports consideration of alternate disposition.”
An assessment like that has a strong influence on OSTC’s calculations about taking the case to trial. But not if you waive the hearing or don’t use it well.
How We Use It
We treat the Article 32 like a stress test and recon mission. This is our chance to:
- Force the government to articulate its theory of the case and identify the evidence it will rely on most at trial.
- Address weaknesses in the government’s own evidence that undermine that theory and will be a problem when it comes to proving the case beyond a reasonable doubt.
- Develop rapport among the defense team.
- Get detailed feedback about the strength of the case from an experienced trial lawyer or judge (the PHO).
- Elevate our ongoing communications with OSTC by having in-person discussions about the case and possible alternatives to trial.
What You Get
OSTC does not want a high-profile loss. OSTC also doesn’t want to waste time or perpetrate an injustice. If the Article 32 is used well, it can create opportunities for:
- Dismissal, if the case is too weak to survive trial.
- Charge reduction, especially where the evidence doesn’t support the most serious allegations.
- Command deferral, if OSTC decides the case has merit but doesn’t belong at a General Court-Martial.
All of that starts with a strong Article 32. And none of it happens if you waive it or treat it like a formality.
Note: If your civilian lawyer tells you to waive the Article 32 hearing without a strategic gain in return, remember this: lawyers make more if your case goes to trial, and an unscrupulous lawyer might let an Article 32 slide to pad his fee.
What You Can Expect If You Work With Us
You’ll know what’s happening with your case and why. We’ll give you our honest opinion, not just your options. We’ll help you make decisions based on risk and reality, not fear or fantasy. We’ll fight when there’s something to fight for. We’ll resolve cases when it’s the best way out for you.
And we’ll be honest. If we think you’re being railroaded, we’ll say so. If we think a plea is the best path, we’ll explain why. If we think you’re lying to yourself, we’ll tell you. We’ve been doing this long enough to know that denial doesn’t help anyone.
Frequently Asked Questions
Q: Can I hire a civilian lawyer for a court-martial?
A: Yes. If you can afford one, you should. The military is not required to pay for a civilian lawyer, but it cannot stop you from hiring one to defend yourself. Most service members go through the process without outside counsel, and the system is comfortable with that. It leans on obedience, patriotism, and trust that the process will be fair. You’re unlikely to be openly discouraged from hiring a civilian attorney, yet the pressure to go along is real, even when it’s not spoken. Your right to hire an expert military attorney is as essential to your outcome as your right to silence.
Q: Do I still keep my assigned JAG defense lawyer if I hire a civilian attorney?
A: Yes, in most cases. In some administrative cases, the JAG defense office might not provide an attorney if you hire a civilian. However, in any case with UCMJ action, you are entitled to the assigned uniform defense counsel and are allowed to hire an attorney at your own expense. If you hire a civilian lawyer, that lawyer should be in charge of the defense team, should be the point of contact for all significant discussions, and should maintain a smooth working relationship with your defense JAG’s office.
Q: When should I hire a civilian military lawyer?
A: The moment you learn you’re in trouble or under investigation. Most defense JAG offices will not provide you with a lawyer at the start of an investigation. You’ll have to wait until you receive UCMJ charges, which could be months later, and after the decision has been made to move forward against you. Early involvement protects your rights and can influence the direction of the case. An attorney will answer your questions, calm your anxieties, get updates on your case’s progress, and help you decide whether cooperating with the investigation is wise (rare, but not unheard of). If there’s favorable information, your attorney can use it to encourage the prosecution to stop the case before it really gets going, or to resolve the incident in a much softer way. Patience might be a virtue, but it is not a strategy. Even in the rare instance where you are given a defense JAG early, that attorney is unlikely to have the experience, sophistication, or finesse of a strong civilian military lawyer. When you’re up against the government, and the government has unlimited resources to use against you, you need the best possible legal defense as soon as you can get one.
Q: Who pays for a civilian military lawyer?
A: The service member pays. The military will provide a free defense lawyer from its JAG corps, at some point, but it will not provide any financial assistance for hiring a civilian attorney. Civilian military law firms usually charge flat fees instead of hourly rates. The fee should be quoted up front to the extent possible, based on the scope and complexity of your case, and that fee is the price for all services. You should not be penalized for communication about your own situation, so the flat fee should cover all text messages, phone calls, and emails, in addition to legal work.
Q: How much does it cost to hire a civilian military lawyer?
A: Typical costs for the initial, investigative stage of a case can range from $4,500 to $8,500. Our initial fee is usually $6,500. If an Article 32 (probable cause) hearing is held, expect to add $8,000 to $15,000. Our fee for this stage is usually $10,000 to $12,000. If the case goes to trial, a typical additional fee would be between $15,000 and $30,000. Our standard trial fee is $25,000.
Start to finish, a defense can cost upwards of $50,000. Some firms charge twice that amount, though even these firms will have an initial fee in the $4,500 to $8,500 range.
While the cost of a case that goes all the way to trial can be high, most cases are resolved during the initial period through dropped charges, an administrative resolution, or nonjudicial punishment. The cost of arming yourself with a quality defense might be high, but if you lose your case, the long-term consequences can include: loss of your job, loss of future jobs, loss of your retirement, loss of your military housing benefits, loss of your medical benefits, loss or repayment of your enlistment bonus, repayment of the cost of your military academy education, and in some cases you may have to register as a sex offender.
No Penalty for a Free Phone Call
If you think you’re under investigation or know charges are coming, don’t wait. The earlier you act, the stronger your case can be.
Call us at 800-319-3134 for a confidential case review.