Court Martial Defense

Provided by our  Honolulu Court Martial Attorney, a former Marine

If you are facing military charges, it is better to have a former Marine who is also a Hawaii court martial attorney on your side that can explain the charges against you, as well as your options. As a former Major and military attorney for the United States Marine Corps, with 10 years of experience defending Marines and Sailors at trial and on appeal, Honolulu court martial lawyer Emmanuel “Noel” Tipon has a full understanding of how the military court martial and legal process operates.

Levels of Court Martial Proceedings

There are three different levels of court martial proceedings.  Each varies slightly, and will depend on the severity of the offense.

Summary Court Martial is the simplest procedure and often involves minor misconduct.  The court martial consists of one commissioned officer who may only hear cases involving enlisted personnel charged with non-capital offenses.  The maximum punishment a summary court martial may impose depends on the pay grade of the accused, but it is less than the punishment that may be imposed by a special or general court martial. 

You do not have the right to representation by an attorney.  But the government must still prove your guilt beyond a reasonable doubt.  However, in all cases, the defendant must consent to the summary court martial; therefore you may instead opt for a different type of court martial proceeding.  Even if you feel that the summary court martial is the best option for you, it is usually best to consult with an attorney prior to agreeing to present your case before a summary court martial.

Special Court Martial is the intermediate military court that involves presenting your case before a military judge and a panel of at least three officers or Enlisted servicemembers if you are also an Enlisted servicemember.  A special court martial is similar to a civilian misdemeanor court and the panel of officers is similar to a jury.  The case is prosecuted by trial counsel and the accused is represented by defense counsel.  If you do not wish to present your case to the jury, you may request that your case be tried by the military judge alone.  Even though it is the accused’s decision alone to be tried by a judge or jury, you should consult with an experienced attorney before making your final decision.

The maximum punishment under a special court martial is one year of confinement, forfeiture of 2/3 base pay per month for a maximum period of one year, and, if you are enlisted, a bad-conduct discharge. Officers who are tried in special court martial may not receive a discharge or confinement.

General Court Martial is the highest level in the military court martial and consists of a military judge and a jury of at least five court members. Similar to the special court martial, the accused may request that he/she be tried by the military judge alone, unless it is a case involving the possibility of the death penalty. The general court martial is similar to a felony court and any person subject to the Uniform Code of Military Justice (UCMJ) may be tried by a general court martial. A general court martial may impose any punishment authorized by the Manual for Courts Martial. Depending on the severity of the offense, such punishments may include the death penalty, confinement for life, the dishonorable discharge of enlisted personnel, or dismissal of an officer. During a general court martial hearing, your case is prosecuted by trial counsel and you have the right to be represented by defense counsel.

The Article 32 Pretrial Investigation and the Court Martial Process

Upon being charged with a crime, you will receive a charge sheet indicating the nature of your charge. Depending on the severity of your crime, your case may be referred to a summary or special court martial or it may be tried before a general court martial. Before your case can be referred to a general court martial, you must undergo an Article 32 pretrial investigation. This investigation provides you with an opportunity to present your case, including witnesses and evidence in support of your argument. You also have the right to cross examine adverse witnesses and testify on your own behalf. If you wish, you may waive the pretrial investigation and proceed directly to the general court martial.

Appealing Court Martial Decisions

You have the right to appeal either the findings of guilt and sentence, or both, if you are convicted at a court-martial. If you receive a punitive discharge, such as a Dishonorable Discharge, Bad Conduct Discharge, Dismissal, or you have been sentenced to more than one year of confinement, your case will be automatically appealed to the Court of Criminal Appeals for your branch of service.

During this appeal, the court will examine the case for factual and procedural errors that may have affected the verdict or sentence. Questions raised on appeal can include:

• Was all the evidence admissible and correctly presented?
• Did the prosecutor deliberately withhold pertinent facts, and/or tamper with witnesses?
• Were the judge’s instructions to the jury accurate?
• Was the sentence just and appropriate?
• Are you in fact guilty beyond a reasonable doubt?

If the Court of Criminal Appeal upholds your conviction, you may then appeal to the United States Court of Appeal for the Armed Forces and eventually to the Supreme Court of the United States.

Your Right to a Defense Counsel

You have the absolute right to be represented by a defense attorney in a special or general court-martial proceeding. You also have the right to be represented by a defense attorney during your appeal, even if it is an automatic appeal. In a special or general court-martial, you will be assigned a military defense counsel to represent you. Do not think that you do not have the right to seek and hire a defense attorney outside of the military. Under military law, you have the right to hire a civilian attorney to represent you at trial or on appeal. You should exercise your right to be represented by a competent and experienced criminal defense attorney who knows and understands the military justice system.

If you are facing the possibility of a military charge or if you are seeking to appeal a prior court martial conviction, contact Hawaii court martial attorney Noel Tipon today for an initial consultation. Tagalog and Ilocano spoken.