One of the frequent questions that I hear in my practice relates to whether or not a military member facing court-martial should “go judge alone.” 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, it is rare that I will advise a client to give up their constitutional right to a jury trial.
Unfortunately, I have seen a disturbing trend over the last few years of military counsel getting gun shy about presenting a case to a court-martial panel. While understandable if they have had a bad result or had a client receive an unusually harsh sentence, that should negative experience should not be allowed to cloud their judgement or impact the evaluation of a current case.
Here are few reasons why going judge alone may be the most significant mistake you make in your life:
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. While I believe most military judges are sincere in their efforts to avoid outside pressure or influence, if they find a military 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 and they panel does not have to be unanimous. That means no individual panel member can be blamed or accused of being soft on crime.
Military judges are not appointed for life and compete for promotion with their fellow officers.
Comment: As part of the fall out from the appeal in the case of U.S. v. Vargas, it was 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 real lesson from this case, I fear, is that judges know that they will quickly earn a reputation if they acquit service members. If Commanders have been fired for being perceived as soft on crime it is likely that military judges will believe that earning a reputation for being soft will damage their career prospects.
Court-martial panel members are highly trained, educated, and understand what it means to defend the Constitution.
Comment: At times I have heard counsel argue that a client should go judge along because their defense involves a complicated legal issue that may confuse panel members. In over 15 years I have never failed to be impressed by military court-martial panel members 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, but I am continually impressed by the ability and willingness of panel members to work hard, ask the difficult questions and seek just outcomes under the law.
It was Thomas Jefferson who noted, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Comment: Enough said.
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. If you have questions or concerns about your case, you should consider consulting with a member of our team of experienced military defense attorneys.
The attorneys of Crisp and Associates Military Law are the worldwide leaders in military justice and court-martial defense—period. Our attorneys consist of former military judge advocates, a law enforcement officer, and others all of whom have 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 a simple non-judicial counseling to defending Soldiers who appeared on the front pages of newspapers and magazines worldwide. They have been on both sides of the aisle: prosecution and defense. 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 are facing adverse action, Non-Judicial Punishment, or court-martial, call Crisp and Associates, LLL for a free consultation and learn what it is like to have and advocate on your side that speaks the language of command.