REFERRAL OF CHARGES
At Bilecki Law Group,We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
We’re going to talk about the referral of charges next on “Off The Record.”
- Headed For Trial
- After The Referral of Charges
- The Arraignment
- Discovery Triggers
- Trial Management Order
If you’ve been through the Article 32 hearing and you’ve had the charges referred against you, you’re in for a fight. Remember, there’s a preferral of charges. That’s when you go to the commander’s office and the commander has made the decision to actually charge you. That’s the preferral of charges. That’s when you first get informed that you have charges actually against you.
The next step, if you remember, is the Article 32 hearing which is the probable cause hearing. If probable cause is found and the convening authority decides to go forward, charges are then referred against you. These are on legal terms of art under the UCMJ.
Headed For Trial
The referral of charges has significant consequences. That is the first time that a military judge is typically going to be involved in your case. That is a direct signal to you and to your lawyers that the case is headed for trial.
After The Referral of Charges
After the referral of charges, you’re going to get recalled into your commander’s office. Sometimes they’ll have you sit down. Sometimes they’ll have you stand up or rest. Sometimes they’ll have you dress in uniform. It really depends on your commander. And you’ll have to sign for the referral of charges. Similar to the preferral of charges, this is no acknowledgment of guilt. It just means that you’ve received the charges. That’s it.
You’re not going to make any statements when you go through that process. You’re just going to sign for the charge sheet and let your attorney know immediately because sometimes you might know before the attorney that you’ve had charges referred against you. From here, it’s game on. If it wasn’t game on before, or you didn’t take this seriously, now you have to take it seriously. Because there might have been a lot of hurry up and wait before. You might have been under investigation for a year or six months, but things are going to start happening very, very quickly.
After the referral of charges, we have what is called the arraignment. This is going to be the first time you’re actually in court. Not an Article 32 hearing, but actually going to court. You’re going to be in your dress uniform. You’re going to go before a judge and you’re going to have to present in court.
Essentially, the arraignment is where they arraign you on the charges. It stops the speedy trial clock, number one. And it formally notifies you of the charges against you, all right?
At that hearing, the judge is going to ask you how you plead and who you want to represent you. If you’re happy with your counsel, your ADC, your TDS attorney, you’re going to state to the judge on the record that you want that attorney to represent you. You’re going to stand up and put their qualifications on the record. And from that moment forward, they’re the attorney of record and can only be released for certain reasons. If you have civilian counsel on the case, we’re going to file what is called a formal notice of appearance.
That’s a written notice to the court, to the judge, saying, “We are the lead attorney and the attorney of record on the case.” That’s a very important step. If you haven’t hired a civilian counsel yet, you need to let your TDS, your military lawyer, know that you want to hire civilian counsel. And the judge should be aware at that point in time that you want to hire civilian counsel. The judge may give you some additional time, but now is the time to make that determination if you’re going to bring on civilian counsel or not. You can do it after arraignment, but it causes a lot of headaches with the scheduling.
So, at the arraignment, your lawyer’s going to, what’s called, defer the entrance of plea and form. If you’re wondering what that is, in order to plead guilty or not guilty, any motions that you want to file, motions to compel evidence, motions to suppress evidence, motions to compel witnesses, all motions need to be filed before you enter into a plea of guilty or not guilty. As it hasn’t been timely to file motions yet, we’re going to defer the entrance of pleas until a later date. That is standard practice. We’re also going to defer the filing of any motions at that point in time. That’s going to essentially end the arraignment. That arraignment is a five-minute hearing.
In addition, after referral of charges, discovery triggers. And what I mean by that is, under the rules for court martial, you have the right to full discovery after referral of charge is given, limited discovery at the preferral, but full discovery at the referral.
So what that basically means is anything the government has filed, anything they’re going to be using against you, who the witnesses they’re going to call, all of the evidence that they have, they need to turn over to the defense counsel so you know exactly what you’re facing, so full discovery triggers at that point in time.
If there’s anything the government is not going to give you or that they say that’s law enforcement privilege to have some other privilege, that’s the time where you have to file motions to compel and file all the motions to litigate to get that discovery.
Trial Management Order
The other important thing that’s going to happen is you’re going to get what’s called a T.M.O., or Trial Management Order. And that’s essentially the judge telling you all of the dates. You’re going to know the exact date of your trial. You’re going to know the date of what is called the 39(a) sessions.
Those are called basically time for you to go before the court and litigate the motions. It’s called an Article 39(a) sessions. We’re going to have a timeline for when to file motions and all the triggering events are going to be set in stone or if they’re going to be changed, we have to file a request to change them. So, it’s at that point in time you’re going to have a good understanding of how much time you have until you’re going to get ready for trial. At this point in time, you must absolutely kick it into high gear and get ready to proceed towards trial.
The next phase that typically happens is motions litigation. And we’re going to talk about motions litigation on the next episode of “Off The Record.”