The military justice system has drawn criticism over the years due to the role that commanders historically played in deciding which cases went to trial. This criticism has been heightened in recent years as Congress has sought to address issues regarding the handling of military sexual assault allegations. The FY22 NDAA included Congress’s attempt to resolve the issue.
The FY22 NDAA established an Office of the Special Trial Counsel in each service. The services had until December 27, 2023 to implement the new law and stand up its office. Each service’s office is led by a flag or general officer who is the lead Special Trial Counsel. That officer supervises several subordinate Special Trial Counsel throughout the service. These attorneys are now responsible for making decisions about whether or not to prosecute the most serious offenses under the UCMJ, including sexual assault.
The offenses that the Special Trial Counsel will act on include murder, rape and sexual assault, domestic violence, kidnapping, and stalking. For all of these cases within their service, the Office of the Special Trial Counsel will now prefer charges and make the decision on whether or not to refer the case to court-martial. The Special Trial Counsel will also be the only authority authorized to enter into a plea deal in these cases.
The commanders will retain their authority over cases that do not involve these most serious offenses. They will also have a role to play in the execution of the courts-martial for charges preferred and referred by the Special Trial Counsel. The commander will still provide members for the panel, approve witness requests, make pretrial confinement decisions, and conduct the post-trial review.
Hopefully, this new structure will create consistency across each service in the handling of serious offenses. It will hopefully also ensure that weak cases are not referred to court-martial by commanders fearful of appearing not to take military sexual assault seriously.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.