Every defense attorney seems to go through evolution in their career. Early on, there tends to be a tremendous fear of the jury. What I mean is that many young defense counsel fear that the jury will be government friendly, harsh, and unforgiving on sentencing. This leads to extremely risk averse decisions like taking deals or selecting judge alone forums.
Make no mistake, sometimes pleading guilty or going judge alone is the best decision. But, the data seems to indicate that lawyers are taking the deal an awful lot of the time.
In the last four weeks, I've litigated two contested trials in front of juries at Fort Bragg and Fort Hood. I've also defended two separation boards at Marine Corps Air Station Miramar and Marine Corps Base Twentynine Palms. We had full acquittals at trial and positive results at the separation boards.
In that time, the Army has also released its court-martial data for the month of August. They don't always release that data monthly. The data showed that 32 out of 42 cases were guilty pleas. Clients took the deal 76% of the time. Half of the contested cases were jury trials and the other half were judge alone trials.
In my contested trials, military lawyers recommended a chapter in one case and a mixed plea in the other case (pleading guilty to some charges and not others). In both cases we got full acquittals.
Over the last few years, the military system has been under attack by civilians over sexual assault cases. The unvarnished reality is that military juries are the best juries in the world. HANDS DOWN. A military jury is always well-educated. Both officer and enlisted members have college degrees, advanced degrees, or equivalent training. The panels are usually a diverse cross-section of race, gender, and professional experience. They are trained to follow orders and be disciplined. I truly believe they follow the law.
The fear of the military jury can often be irrational. Fort Bragg is a perfect example. The perception among the defense community is that 82nd Airborne Soldiers exhibit the most Army pride of any unit of Soldiers. They are likely to be jurors predispositioned to favor Army prosecutors. My experiences have been to the contrary. My last two cases there were full acquittals. Both cases involved jury nullification.
Forum selection is an agonizing decision. But, it shouldn't be made because you're afraid of the jury. With a well-prepared case and strategy, a military jury wants to acquit.