All Criminal Defense Lawyers (CDLs) should understand, generally, the military systems for disposing of misconduct.
Yes, I know you are busy. Yes, I know that I am asking you to become generally familiar with a markedly different system of criminal justice. Trust me when I say it will pay dividends and allow you to better represent your clients.
Lets start with some assumptions. First, eventually, you will represent a member of the Armed Forces. More likely, you will represent more than one. They come in different flavors. First, you have the Army, Navy, Air Force, Marines, and Coast Guard. Within those, you have an active duty (full-timers) and reservists (weekend warriors). Additionally, the Army and Air Force have their National Guard component. All told, we have well-over a million uniformed service members. Some are in your community right now. This is a no-brainer if you live in a military town, but even those in non-military towns have recruiters, reservists, and national guard strolling the aisles of Walmart. You probably have a friend who serves as a Reservist, and you don’t even know it.
Second, the nature of their criminal (or possibly even civil) matter could effect their military career.
One likely will walk into your office someday. He or she might not tell you that they are in the military, but if they are, it is vitally important that you know the collateral consequences of legal action. (Hint: Look for the bad haircut).
To illustrate my point, lets consider an example.
Sergeant Jack Dannels works as an Army Recruiter in your hometown of Goodland, Kansas. You have a general practice firm in Goodland.
Sergeant Dannels is pulled-over because he is driving erratically. A field sobriety test along with the strong odor of alcohol give the officer probable cause to believe that Dannels was drinking. He goes to the Police HQ where he registers a .12 on the breathalyzer. He is booked and released to his wife.
He retains you. You do some research and ascertain that it is his first DUI. From this, you know the DA will grant a pretrial diversion (pay 2x the fine, and charges are dropped unless and until there is another DUI stop). Your strategy and legal knowledge worked, right? After all, you do this for all first time DUIs.
He happily pays the money and walks away a happy man.
That is, until his DUI arrest is published in the local Goodland paper. The paper is read by Captain Hardnitz, his commanding officer. Hardnitz calls the police department and obtains a copy of the police report–including the breathalyzer. Using this, he sends the report and a summary of it up the chain of command. They do the following:
1. The Battalion Commander (a Lieutenant Colonel), issues him nonjudicial punishment. This is punishment through a process that avoids taking the soldier to court. It is quick and designed for lesser offenses of the law. Because of this, Dannels is reduced in rank from Sergeant (pay grade E-5) to Specialist (E-4). This means an overall loss in pay of over $500 a month. Additionally, it results in him forfeiting half of his pay for 2 months, and he is given additional duties in the evenings and on weekends for 45 consecutive days.
2. The Commanding General issues your client a letter of reprimand and has the letter filed in your client’s official military file (destroying your client’s hopes of ever becoming a senior Sergeant).
3. Because the command is taking a hard stance against alcohol-related offenses, they process your client for separation from the Army (i.e. they are trying to fire him from his job).
4. They order your client to give a 30 minute class to all the other recruiters about the negative effects of DUIs (this is called “corrective training”). This is extremely humiliating.
Now, your client, his wife, and their two children wonder how they will ever make ends meet since he has lost a bunch of money (reduction in rank + loss of 1/2 pay per month for two months + fee for the pretrial diversion + your retainer), and he might lose his job.
Just think, you thought you got him a great deal.
Several things can be done. First, these collateral effects can be used as bargaining chips with the prosecutor. It may be enough to drop the charges entirely. Second, talk to the deputies/arresting officer/sheriff, many of them are prior-military, and they understand and sympathize with your client. They may be willing to not release the results of the arrest to the press and/or the command. At worst, they say no. Its at least worth a try. Third, you may be able to speak with the command and preempt any action on their part.
I’ll continue to talk about various military-law-related topics in the next few weeks. However, know that resources are available. First, almost every military installation has a Trial Defense Services office available to answer questions and talk to servicemembers. Second, you may know an attorney with JAG or military experience, and they can serve as an invaluable resource in these situations. When in doubt, feel free to call one of us. After all, your clients deserve a comprehensive defense.