You need a civilian lawyer. Civilian lawyers in a court-martial don’t fear the military judge. Civilian lawyers in a court-martial don’t have to worry about the prosecutor becoming their boss at their next duty station. Civilian lawyers decide how many court-martials they take. Military defense attorneys are often good people, and sometimes their good lawyers. But they don’t just answer to you. Military defense attorneys have to worry about their current chain of command and their next chain of command. Military defense attorneys are the public defenders of the military. They’re overworked. A civilian lawyer will never take so many cases, he or she cannot give your case the time and attention it needs.
You need a lawyer who has prior service as a Judge Advocate. Court-martials and civilian trials are not the same. Many civilian defense attorneys practicing military law do not understand the differences. You need a lawyer that knows and understands the Uniform Code of Military Justice (UCMJ). You need a lawyer that knows and understands the Rules for Court-Martial (RCM). You need a lawyer that understands the Military Rules of Evidence (MRE). You need a lawyer that has every Manual for Courts-Martial (MCM) and the Military Judge’s Desk Book on his or her desk. The Rules of Courts-Martial matter and knowing them can mean the difference between guilty and not guilty.
You need a lawyer who has prior service in specific combat arms branches: infantry, special forces, armor, cavalry, or aviation. A panel of officers (which is a military jury and may include a few senior enlisted members) will ultimately decide if you are guilty or not guilty, and you want a credible attorney who will not be intimidated by two rows of field grade officers. Panel members are more likely to listen to a lawyer who has been where they have been or worse. When your lawyer has gotten his hands dirty, he will have the confidence talking to a group of high-ranking officers, and he will have their respect. Respect matters.
You need a lawyer who is qualified to try any case, and you need a lawyer who has tried every case. If your lawyer is not capital offense certified, he has not tried every case. “Capital offense certified” means you’re good enough to try death penalty cases. You don’t want a lawyer terrified to defend you in your theft case because it’s the biggest case he’s had. You want a lawyer who has seen it all and done it all.
Your court-martial should not be your attorney’s first trial. You want a lawyer as comfortable in the courtroom as he is in his living room. To achieve that level of comfort, you need to go to court. A lot. You want a lawyer that knows how to evaluate potential panel (jury) members and pick the right ones. You want a lawyer who has seen every underhanded trick and surprise prosecutors can pull and who knows how to beat them. You don’t want a rookie. You want an all-pro veteran.
You want a lawyer who wins. In a court-martial, there are no moral victories. Winning really is everything. Winning means you don’t go to jail. Winning means you don’t lose your money. Winning means you don’t lose your career. Winning means you don’t spend the rest of your life saddled with a federal, criminal conviction. Some lawyers win. Many don’t. You want a winner.
A court-martial isn’t a game. A court-martial is combat. You don’t want a fair fight. You want overwhelming force. Whatever your charged with, your life is on the line. This is not the time to cut someone slack because they just became a prosecutor, and they don’t know what they’re doing, yet. This is not the time to go easy on someone because they’re crying on the witness stand, and you feel bad for them. This is kill or be killed. This is a situation that demands savagery. You must exploit every weakness. You must take every advantage. You must be ruthless, and you must have a ruthless attorney. You served your country. You fought for your neighbor. You put your life on the line for these people, and they thank you by charging you with a crime. You need an attorney who will fight for you as passionately as you fought for us.