Should I Go Judge Alone?

One of the frequent questions I hear in my practice relates to whether or not a military member facing court-martial should “go judge alone.”  Specifically, that means that a military judge rather than a court-martial panel will decide guilt or innocence and then decide on an appropriate sentence.  While every case is different, advising clients to give up their constitutional right to a jury trial is rare. Unfortunately, I have seen a disturbing trend over the last few years.  Military counsel is getting gun-shy about presenting a case to a court-martial panel.  It is understandable if they have had a bad result or had a client receive an unusually harsh sentence.  However, that negative experience should not cloud their judgment.  Nor should the experience impact the evaluation of a current case. 

Here are a few reasons why going judge alone may be the most significant mistake you make: A judge has no one to blame and nowhere to hide. Comment:  In today’s politically charged environment, where military commanders have been fired for doing what they believed was right in sexual assault cases, asking any military officer to make decisions that may be viewed as counter to the perceived war on crime in the military is dangerous. I believe most military judges are sincere in avoiding outside pressure or influence.  Yet, if they find an army member not guilty, everyone knows who to “blame.”  With a court-martial panel, the law prohibits anyone from ever revealing the vote of any other member.  Additionally, the panel does not have to be unanimous.  Therefore, accusations of being soft on crime cannot be leveled against individual panel members. 

Military judges do not have appointments for life.  They compete for promotion with their fellow officers. Comment:  There was significant fallout from the appeal in the case of U.S. v Vargas.  It revealed that Air Force senior trial counsel and a victim’s counsel conspired to prevent a military judge from presiding over sexual assault trials.  Why?  Because the military had acquitted two Air Force members in sexual assault cases.  The lesson here, I fear, is that judges know they will quickly earn a reputation if they forgive service members.  Commanders have been fired over perceptions of being soft on crime.  Therefore, it is likely that military judges will believe earning a reputation for being soft will damage their career prospects. 

Panel members are highly trained and educated.  They understand what it means to defend the Constitution. Comment:  I have sometimes heard counsel argue that a client should judge alone.  Surprisingly, they often believe their defense involves a complicated legal issue that may confuse panel members. Panel members of a military court-martial are impressive.  The panel members strongly desire to follow the law and understand the critical issues in a case.  Unfortunately, I have repeatedly seen military judges make mistakes.  Court-martial panels are not perfect.  However,  I am continually impressed by the panel members' willingness to work hard, ask difficult questions, and seek just outcomes under the law. As an attorney who has been trying court-martial cases for over fifteen years, I have learned that military members should be asking all of these questions and more before they decide to accept a “go judge alone.” Deciding whether to waive your right to trial by jury is a crucial decision that will impact you for the rest of your life. However, if you have questions or concerns about your case, you should consider consulting with a member of our team of experienced military defense attorneys.

Our Team

The attorneys of Crisp and Associates Military Law are worldwide leaders in military justice and court-martial defense. Our attorneys include former military judge advocates, law enforcement officers, and others.  They have all served in the Army, Navy, and Air Force or worked closely with the other Uniformed Services. Our attorneys have handled every military law matter, from simple non-judicial counseling to complex court-martials. They have been on both sides of the aisle: prosecution and defense. Additionally, we have handled matters from Seaman Recruit to general and flag officers. They have served at every level of the chain of command, from a platoon, ship, and squadron to the Office of the Secretary of Defense. If you face adverse action, Non-Judicial Punishment, or court-martial, call Crisp and Associates, LLC, for a free consultation.