Noel: If I’m found guilty to court-martial, what am I looking at? Let’s talk about it on this episode of “Off the Record.”
So I’m going to court-martial, what are the potential punishments and I’m looking at?
Tim: You could potentially face reduction to E-1, forfeiture of all pain allowances, confinement for up to life without the opportunity for parole and a punitive discharge, which is either a bad conduct discharge, a dishonorable discharge, or if you’re an officer, a dismissal. That’s the maximum punishments that you can face and every single article has different maximum punishment. So Noel, what does that really mean or someone who has been convicted or maybe going through the court-martial process?
Noel: Well, the reality is will you get the maximum out there? It’s possible, it just depends on what the charges are that you’re facing. You’re probably not going to get the maximum punishment out there, but a reduction in rank, forfeiture in pain allowances, confinement, a punitive discharge, those are all very real scenarios that you’re going to get depending on the severity of the charges that you’re facing.
Now, in the overwhelming majority of the cases that we take where you’re charged with felony-level offenses, you’re looking at a lot of those things that are close to the maximums, years in confinement, and those punishments take place almost immediately. The confinement, the moment that sentence is announced, you are going into jail.
All Hope Is Not Lost
Tim: Yeah, I mean they say, what do you do if you get convicted? Well I always say the best way to not get hit by a train is don’t be on the tracks. But if you happen to be on the tracks and get hit by the train and you have to go through the sentencing phase, what do you do?
All hope is not lost. Too many times, if someone is convicted of even one of the lesser included offenses or have an offense, they feel that all hope is lost, but you have to keep fighting.
After the verdict, almost immediately after in the military, we go into what’s called the sentencing hearing, which is different than in state court or Federal Court where the sentencing hearing will be weeks or months down the road.
At that sentencing hearing, the government will present evidence in aggravation that can be members of the command that say you’re not a good Marine or you’re not a good soldier.
It can be the alleged victim, I guess now the actual victim, if you’ve been found guilty, talk about all of the traumatic events or what the crime has caused her. If it’s a financial crime, it can be issues on restitution.
The government presents all of this evidence to the finder of fact because in the military if you had a jury trial or a panel case, it’s actually that same panel that found you guilty that’s now going to impose the sentence. If you went judge alone, it’d be that judge who imposes the sentence. So the government is going to make you look like the worst Marine or the worst sailor or the worst soldier absolutely possible, so just be ready for it and know it’s coming.
Once they finish their case, we’re allowed to put together matters in extenuation and mitigation. Oftentimes that means calling members of your command to say that you’re an outstanding soldier, calling family members, giving a statement about mitigating circumstances that…of why something occurred or extenuating circumstances. After that, both sides will argue, the prosecutor gets up and argues.
Sometimes it’s for the maximum sentence, sometimes it’s from a lower sentence but they will make an argument to the jury oftentimes for what you should be sentenced to. At that point in time, your defense counsel gets up and makes a similar argument on the other side saying why you should get a minimal sentence, why it should only be reduction, why confinement would not be appropriate, all of those matters.
Everything is then brought to the jury or to the panel and they will actually deliberate on sentence, which is why in the military, the sentences are so varying. There are, at least at the time we’re doing this filming, there are no sentencing guidelines. There are very few mandatory minimums and the jury often has huge discretion as to what to sentence you to.
So if the maximum sentence in the case, let’s just say it’s reduction to E-1, forfeiture of all pain allowances, confinement for 40 years, and the dishonorable discharge, just for sake of this discussion. A prosecutor may ask for 20 years, we may ask for time served if you’ve already been in confinement or may ask for a reduction.
The jury’s free to give whatever the hell they feel is appropriate. That’s why you can have two seemingly similar cases where one soldier walks away with 20 years maybe for a sexual assault and a similar sexual assault, a different soldier walks away with 5 years.
You Need A Trial Lawyer For a UCMJ Defense
The Uniform Code of Military Justice, when it comes to sentencing, is anything but uniform, which is why it’s critically important that whoever is representing you is actually a trial lawyer, someone who can advocate on your behalf because even if you plead guilty or found guilty, the fight doesn’t end there. The fight then becomes to limit the punishment to the absolute lowest amount possible. That’s why, again, you never stop fighting until the very end. Never lose sight of the fact that you’re always fighting for your freedom.
We’ve had many cases where let’s say the government gives you a pretrial agreement where they’re going to cap your confinement at two years and you take a guilty plea and you’re going to do two years.
Many, many cases, we take these cases to trial, fight them all the way to verdict and because the sentencing is done with the members or with a jury, oftentimes we can get a much better sentence even if we fought and lost the case on the merits, we can still win this at sentencing. So the key here is to always fight and look at it in the entire perspective of things because the trial does not end at the verdict unless you are found not guilty of all charges and specifications.