
Understanding the New Office of the Special Trial Counsel (OSTC) in the Military
The military justice system has undergone a significant transformation with the creation of the Office of the Special Trial Counsel (OSTC). This change, brought about by the National Defense Authorization Act (NDAA) for Fiscal Year 2022, reshapes how certain serious offenses are prosecuted in the armed forces. For military members facing allegations of covered offenses, understanding these changes is critical to navigating the system and preparing a robust defense.
At KMD, our attorneys were both Senior Trial Counsel (STC) in the Air Force long before the OSTC was created. We were senior prosecutors, and we kept an eye on the development of the OSTC. If you’re facing an allegation under the covered offenses discussed below, it is crucial to have someone on your team who knows about being a prosecutor and can leverage that experience on your behalf.
Convening Authority: The Role Before OSTC
Historically, convening authorities held substantial power within the military justice system. A convening authority, typically a commander, had the authority to:
- Initiate Court-Martial Proceedings: Decide whether charges against a service member should proceed to a court-martial.
- Refer Charges: Determine the type of court-martial (summary, special, or general) appropriate for the alleged offense.
- Select Panel Members: Choose the members who would serve on the court-martial panel, akin to a jury.
- Grant Clemency or Modify Sentences: After a trial, the convening authority could reduce sentences or set aside findings of guilt.
While these powers were grounded in the principle of maintaining good order and discipline within the ranks, they also raised concerns about potential conflicts of interest. Commanders, as leaders responsible for both the accused and the alleged victim, might be perceived as biased, either favoring the accused or seeking overly harsh measures to protect their unit’s reputation.
The Birth of the OSTC
The establishment of the OSTC marks a pivotal shift aimed at addressing these concerns. The OSTC is an independent body within the military justice system, staffed by experienced judge advocates who serve as prosecutors for specific serious offenses. This initiative reflects a growing recognition of the need for impartiality and expertise in handling certain cases.
The OSTC has jurisdiction over the following covered offenses:
- Sexual Assault and Related Crimes: Includes rape, sexual assault, and other offenses under Article 120 of the Uniform Code of Military Justice (UCMJ).
- Domestic Violence: Covers assault and other crimes involving intimate partners under Article 128 of the UCMJ.
- Murder and Manslaughter: Includes offenses under Articles 118 and 119 of the UCMJ and Article 119a, death or injury of an unborn child.
- Kidnapping and Stalking: Includes offenses under Articles 125 and 130, UCMJ.
- Child Pornography: Under Article 134, UCMJ.
- Retaliation: Under Article 132, UCMJ
By centralizing the prosecution of these offenses within the OSTC, Congress aimed to eliminate the perception of bias and ensure cases are handled by prosecutors with specialized training and expertise.
Policy Reasons Behind the Creation of the OSTC
The creation of the OSTC stems from long-standing concerns about the fairness and effectiveness of the military justice system, particularly in cases involving sexual assault and other serious offenses. Key policy considerations include:
- Eliminating Bias and Perception of Unfairness: Critics argued that commanders’ dual role as leaders and adjudicators created a conflict of interest, undermining trust in the system.
- Enhancing Expertise: Prosecuting serious offenses requires specialized legal knowledge and experience. The OSTC ensures that these cases are handled by seasoned professionals.
- Improving Victim Confidence: Victims of sexual assault and other crimes often expressed reluctance to report offenses due to concerns about how their cases would be handled. The OSTC’s independence seeks to address these concerns.
- Aligning with Civilian Standards: The move mirrors civilian legal systems, where independent prosecutors—not leaders or supervisors—determine whether to bring charges.
How the Referral Process Changed
Before the OSTC, commanders retained the authority to refer charges to a court-martial for all offenses. Under the new system, the referral process for covered offenses has changed significantly:
- Independent OSTC Review: For covered offenses, the OSTC now has exclusive authority to decide whether to refer charges to a court-martial. Commanders no longer play a role in this decision.
- Centralized Oversight: OSTC prosecutors review evidence, assess the merits of the case, and make independent determinations about prosecution.
- Specialized Handling: The OSTC’s expertise ensures a more thorough and objective evaluation of cases, particularly those involving complex evidence or sensitive circumstances.
This shift ensures greater consistency in the handling of serious cases across the armed forces and reinforces the integrity of the military justice system.
The Importance of Experienced Civilian Defense Counsel
Facing allegations of a covered offense is a daunting prospect for any service member. The stakes are high, with potential consequences including loss of rank, discharge, and even incarceration. Given the OSTC’s specialized focus and prosecutorial expertise, having an experienced civilian military defense counsel is essential to mounting an effective defense.
- Leveling the Playing Field: OSTC prosecutors are highly trained and often have significant trial experience. An experienced civilian defense attorney can match this expertise, ensuring your case is presented effectively.
- Independent Advocacy: Unlike appointed military defense counsel, civilian attorneys are not bound by the military chain of command. They can provide truly independent advice and representation.
- Strategic Case Evaluation: Civilian defense counsel bring a fresh perspective to the case, identifying weaknesses in the prosecution’s evidence and developing tailored defense strategies.
- Comprehensive Support: Civilian attorneys often have access to a network of expert witnesses, investigators, and other resources that can strengthen your defense.
- Protection of Rights: A seasoned defense attorney ensures that your constitutional and procedural rights are protected throughout the process.
Preparing for a Defense Against OSTC Prosecution
If you are facing allegations of a covered offense, taking proactive steps to protect yourself is critical:
- Consult an Attorney Immediately: Seek legal advice as soon as you become aware of an investigation or allegation. Early consultation allows your attorney to guide you through the process and avoid missteps.
- Understand Your Rights: You have the right to remain silent and consult an attorney. Exercise these rights to avoid inadvertently incriminating yourself.
- Gather Evidence: Work with your attorney to collect evidence, identify witnesses, and build a robust defense.
- Prepare for Trial: The OSTC’s expertise means that your case will likely involve meticulous preparation. An experienced attorney will ensure you are ready to challenge the prosecution’s case.
Conclusion
The creation of the Office of the Special Trial Counsel represents a significant evolution in the military justice system. By centralizing the prosecution of serious offenses within an independent body, the OSTC aims to enhance fairness, impartiality, and professionalism. For service members facing allegations, these changes underscore the importance of securing experienced civilian defense counsel to navigate the complexities of the system and protect their rights.
If you find yourself in this situation, remember: you are not alone. With the right legal representation, you can face the challenges ahead with confidence and ensure that your voice is heard in the pursuit of justice. Contact Kral Military Defense now.