In a court martial, there are certain decisions that have to be made by an accused service member. They are: whether to plead not guilty or guilty, whether to choose a judge or jury (called “forum selection”) and whether to take the stand in their own defense. I usually explain this to clients as the “strategic” decisions that they have to make while I make all the “tactical” decisions. You might think that whether an accused has to take the stand is the toughest decision. Not so. Not even close. In some cases they must take the stand for a chance at an acquittal; in others they obviously should not. In the cases on the margins, you see how well the client performs in pretrial “murder boards” and go from there. Never say never, but I have never had a case where it was a difficult decision or where I regretted putting the client on the stand or not putting the client on the stand.

Forum selection is by far the most difficult decision for the client and it is the most difficult decision to advise the client on. This is usually a surprise to lawyers who only have experience with civilian courts because (barring exceptional cases such as that of Michael Brelo) it is almost always the right choice to choose a jury in a civilian criminal trial (in some states and in federal court there is no right to a judge alone trial, the prosecution can force an accused to take a jury trial). This is because it is a lot harder to persuade 12 people unanimously of guilt beyond a reasonable doubt then one person. But, military juries are very different. 1. The prosecution does not need an unanimous verdict for conviction. 2. Military juries or panels are a homogenous older and high-performing group of senior officers and noncomissioned officers selected by the convening authority (who decided to prosecute the case). 3. Military panels have been utterly brainwashed when it comes to allegations of sexual assault, especially involving alcohol. They are also concerned for their careers.

In a jury or panel trial, the judge acts as a referee who rules on the admissibility of evidence and decides questions of law while the jury is the “finder of fact” and ultimately determines how much weight to give the testimony of different witnesses and the credibility of the evidence when reaching a verdict as to innocence or guilt. In a judge alone or “bench trial”, the judge wears both hats: referee and finder of fact. So what are some factors to consider in a court martial when making the forum selection decision?

Reasons to choose a panel:

1. More opportunities for the prosecution (and the judge) to screw up. I’m not being facetious. Not only are panel trials more work for the government but every decision the judge makes carries with it the risk of reversal on appeal. I once had the opportunity to retry a premeditated murder case (I was not involved in the original trial) because the most senior judge in the military had denied a defense-requested panel instruction that he should have given. The conviction was reversed on appeal with ultimately a much better result for my client. (This was also a prosecution mistake; they should not have opposed the instruction.)

2. When the defense has a compelling story. A panel court martial is a trial of competing stories with the panel choosing between them. Panels listen to the drama unfold through the arguments and testimony, then decide the case based on who they believe should win under the circumstances.

3. When the accused is a stellar service member. Especially if he or she has any awards for valor. Character evidence can carry great weight with a military panel (whether the good character of the accused or the bad character of the complaining witness). As well, that military panels are composed of high performing senior service members means that they assume the integrity and good character of higher performing senior service members (the flip side is they may absolutely clobber such an accused on sentencing if they convict).

4. Finally, another reason to choose panel is when the prosecution case is overwhelmingly strong against the accused and a guilty plea is not possible (for a variety of reasons). There is always a chance of getting lucky with a panel trial. See Reason #1.

Reasons to choose a bench trial:

1. One of the strongest defenses in a criminal trial is to have no defense at all. To say, “Your Honor, the defense rests” immediately after the prosecution rests (ends their part of the case). You are not telling a story here (other than through cross examination of the prosecution witnesses), you are saying “the prosecution simply couldn’t prove its case beyond a reasonable doubt and we don’t have to do a thing.” If this is your plan, you probably need a bench trial (my very first full acquittal was in a bench trial with no defense case) because a panel expects a story. They expect a defense case.

2. Another reason to go judge alone (and this one is unique to the military) is if you have a senior client who can’t take the stand (for whichever reason) in their own defense. Military panels expect commissioned officers and senior noncomissioned officers to take the stand and give testimony. (As always there are exceptions but they are rare. I have taken an officer case to a panel and not had him take the stand exactly once. The reasons for going panel outweighed the fact that he wasn’t going to take the stand. We won btw. Because selecting panel in that case was that important.

3. Another circumstance to choose a bench trial is when the case is high profile with a great deal of media attention. Especially if the case has political ramifications. It doesn’t matter how much panel members are instructed to not look up the case on the internet; etc., to believe that they will not is naive.

4. Another reason to choose a judge alone trial is when there is possible prejudice against the accused because of political or religious beliefs, or the nature of the crime. Military panels tend to be religious and politically conservative and to have been married at a young age and have children. This is the demographic reality of career service members. Inevitably, they will be biased against some accused. (The flip side is they can also be biased against a key prosecution witness on the same grounds.). Military judges are from the same demographic. But the mere fact that they have heard other trials (and have been to law school outside the military) broadens their perspective at least somewhat. Likewise they are more likely to look past an accused having poor military bearing. Which matters.