Mr. Bilecki has represented many Service Members with “confessions” who were able to recite their Article 31 rights – some even knew those rights by heart. Some previously received Article 15s and had spoken with a defense attorney in the past. These Service Members know not to trust CID, NCIS and OSI, yet buckle under the pressure of a serious accusation and provide a written a confession that just so happens to include all the elements of each crime. To understand how Mr. Bilecki attacks a confession, it is important to understand the interrogation tactics used by CID, NCIS and OSI. Only after an experienced military lawyer understands the tecniques can he be in the position to tear apart that “confession.”
Today’s CID, NCIS and OSI agents have gone far beyond the stereotypical “good cop, bad cop” routine. These agents are trained in the art of interrogation and the psychology of manipulation, and use an arsenal of weapons to extract confessions from unsuspecting Service Members. Law enforcement agents are trained to get suspects to start talking and stay talking. The agents are typically friendly, polite, and persistent; they give the illusion of engaging the suspect in casual conversation and rarely succumb to making blatant accusations. If necessary, an agent will empathize with a suspect and go so far as to suggest mitigating circumstances that seem to “explain away” criminal intentions. After this long, calculated process leads to a confession, hours of conversation are reduced to mere two or three page statements that exhausted, bewildered Service Members sign without a second thought. To lock in the confession, law enforcement agents typically add in the following questions to the statement. Were these statements included in your confession?
How were you treated?
Fine.
Is there anything you would like to add to this statement?
No.
A Service Member in the hands of an experienced agent armed with proven interrogation techniques and intricate knowledge of the military judicial system is virtually powerless to defend himself.
In cases involving multiple suspects, CID, NCIS and OSI agents have an even more extreme advantage, as suspects are more wary of the co-accused than the agents themselves and believe that talking first is the only way to get out of trouble. With that in mind, an agent need only separate suspects and wait; eventually, a confession will come. Agents will play the words of one suspect off of another, convincing each that the other(s) are busy cooperating and laying blame. Soon enough, agents have elicited multiple confessions, practically guaranteeing conviction at trial.
If you are facing charges which involve a co-accused, it is impereitve that you have an experienced military defense lawyer know how to deal with your confession and the statement your buddies have made against you. In these cases, your lawyer will not only need to take down the lying law enforcement agents who took your statement, but may need to take down your so called buddy who will end up testifying against you at trial. Below we list a few of the techniques Mr. Bilecki uses to expose law enforecement for what they are and to win cases despite the “confession.” All examples used are derived from actual cases that Mr. Bilecki has tried, and won. Take a look at the examples below and ask yourself if they may apply to your case. Then ask yourself if your current military lawyer knows how to attack your “confession” in trial or if he or she has abandoned hope and told you that you need to plead guilty. Ask him how many “confession” cases he or she has taken to trial, then ask how many he or she has actually won.
CSI, NCIS and OSI agents know that at some point after becoming a suspect, a Soldier (Airman, Sailor or Marine) will likely consult a military defense attorney who will inevitably advise the client to invoke his right to silence. Knowing this, iterrogating agents know that from the moment a suspect arrives in the CID office, time to elicit a confession is limited. Agents proceed to maximize interrogation time by preying on the mental, emotional, and physical stresses endured by Service Members accused of a crime; for the agents, time is a weapon. An experienced military defense attorney must know how to diffuse that weapon or use it againt the agents when it counts, at trial.
The transcript below was exerpted from court records for a case in which Mr. Bilecki represented a reitrement-eligible, senior NCO who was taken to CID for interrogation at 2200hrs. Agents read the suspect her Article 31 rights, but lead her to believe that they would be the ones to determine her guilt and subsequent punishment. Even though the suspect was a senior NCO, she felt scared and isolated, and confessed to the allegations against her without resistance.
Mr. Bilecki exposed CID and their tactics to a military panel (jury) and the Soldier was found NOT GUILTY on all charges.
For the entirety of this document, all names have been changed to protect the anonymity of those involved.
Q: You brought SFC Jones into the CID office at 2200hrs on a Monday night?
A: Yes.
Q: You had her commander order her to come to CID?
A: Well, that is SOP.
Q: And her commander brought her to CID with an escort?
A: She arrived with the XO.
Q: She was brought directly from the CQ to the CID office?
A: As far as I know, yes.
Q: You arrived at the CID office to do the interrogation at 2200hrs?
A: Yes.
Q: At 0900hrs, just eleven hours from then, SFC Jones was likely go to TDS to see a lawyer?
A: Well, we assumed that.
Q: From your experience?
A: Yes.
Q: At the TDS office, SFC Jones would likely tell the lawyer what she was accused of?
A: I don’t know.
Q: Based on your experience, you have seen that happen in the past?
A: Yes.
Q: So it is possible it would happen in this case?
A: It is possible, sure.
Q: In your experience, lawyers instruct their clients not to talk to CID?
A: Yes.
Q: So this was likely to be your one shot to talk to SFC Jones?
A: Yes.
Even though the suspect can see a free military attorney at the local TDS office, nearly every suspect – innocent, guilty or somewhere inbetween – is desperate. Being ordered to a CID, NCIS or OSI office is intimidating. The worse the accusation, the more desparate the Soldier feels and the more desparate he or she is to find someone who will “help them out.” Scared of what is going to happen, the suspect usually wants to talk, to get it off their chest, and to talk to someone who will tell them it is not all that bad, when in reality, it is.
If the service member does not want to speak about the charges, the agents typically remind him or her that it’s late and they have decisions to make, decisions that will likely determine their fate. They will lie to the Soldier or Airman and tell them that they or the command have decided to “charge them” and that the Soldier can only help himself if they talk to the agents. The follow up by saying that the Soldier must do it (confess) now while the agents are still able to help him, to talk to the command or the Trial Counsel, to have them “drop the charges” or keep the charges at an Article 15. They lie and make the service member believe that this is the only opportunity for them to tell the agents if they just “made a mistake” or if it “didn’t go down that way” or if it “was an accident.” All too often, if the service member says that he should wait until he can see TDS or talk to lawyer, the agents will say that “a lawyer is just going to tell you to not talk – and that’s ok with us – if you never want anyone to know your side of the story.” Then the agents typically tell the Soldier that, should he decide to not talk, they can’t help him and they will tell the command and Trial Counsel that the Soldier “didn’t want to play ball” and “would not cooperate.”
CID, OSI and NCIS agents create the false impression that time is running out and the Soldier is refusing to help himself while he can. In our experience, only a few service members actually figure out that the only thing they can do to help themselves is shut up and demand to talk to a lawyer. It occurs to very few suspects that the only people “time is running out” for is the agents, not the Soldier. Unfortunatly for service members, most free military lawyers don’t have the trial experience to expose this to dynamic to a jury. To expose these deceitful tactics, Mr. Bilecki strategically sets up, and uses cross-examintion to show the jury that CID, NCIS and OSI are dishonest and that the “confession” was actually coerced from the accused. Without this, you will likely to be found guilty by your own words and go to jail.
Q: You never told SFC Jones, that she could see TDS in the morning?
A: She didn’t ask.
Q: You never told SFC Jones that she would be detailed a TDS attorney?
A. That’s not my job.
Q: You didn’t tell her that she would be detailed a TDS attorney?
A: I read her her Article 31 Rights, we went over this already Sir.
Q: You didn’t tell SFC Jones that she would be detailed a TDS attorney?
A: I told you, I read her her Article 31 Rights and she waived them.
Q: You did not tell her that a TDS attorney would be detailed to her?
A: No.
Q: That she could meet that attorney in just eleven hours?
A: No.
Q: Instead, you told her you needed a statement?
A: I told her that we just wanted to talk, after I read her her rights.
Q: You told her you needed a statement?
A: I don’t remember exactly what I said, that was months ago.
Q: SFC Jones to you she didn’t want to talk about it?
A: I’m not sure, I do not think so.
Coercive Law Enforcement Tactic: “We’ll tell your command that you played ball.”
At trial, deceptive CID, NCIS and OSI agents will sometime concede that they told the accused that “We’ll tell your command that you played ball,” or words to that effect - but absolutely nothing more. To most military suspects, this initial “offer” is not enough to get them to confess. Mr. Bilecki uses thorough cross examination to expose that the agents actually offered much more then this. Typically, the CID, NCIS and OSI agents made a lot of false promises to the accused but will lie on witness stand when asked about their false promises. To expose the agents dishonesty, we don’t hold back, we confront the agents with exactly how they claimed they were going to “help” our client.
At trial, deceptive CID, NCIS and OSI agents will sometime admit to telling Service Members their cooperation will lead to positive recommendations to supervisors and those in charge of conviction. However, agents often offer far more lucrative promises that they never intend to keep, all in exchange for a timely confession. In the transcript below, exerpted from the same case cited above, Mr. Bilecki confronts an agent about his coercive tactics:
Q: You told SFC Jones that you wanted to help her out?
A: What I told her was that if she cooperated, we’d tell [her] command that [she] played ball and to tell the Trial Counsel that she cooperated.
Q: That is the only thing you offered, to tell the command that she played ball and to let the TC know?
A: That’s right counselor.
Q: You did not offer to help her out?
A: No.
Q: You did not explain how bringing her cooperation to the attention of the command and trial counsel would benefit her?
A: Well…I mean, I only said that I would tell the prosecutor she cooperated, uh, and her command.
Q: You never explained to her how that might help her?
A: Well…no.
Q: That’s pretty vague.
A: What I am saying…I told her that we would tell the prosecutor that she was helpful, that she cooperated. Nothing else.
Q: That’s still pretty vague.
A: I never promised anything specific.
Q: So, it’s vague?
A: I guess, if that’s what you say.
Q: Vague and, therefore, not very promising?
A: She could think whatever she wanted, that’s up to her.
Q: And based upon your vague and not very promising offer, SFC Jones started talking?
A: She wanted to get it off her chest.
Q: For more than an hour, she refused to answer your questions about the charges?
A: Yes, but at first we were just having a friendly conversation, not about the charges.
Q: For more than an hour SFC Jones told you multiple times, “I’ve got nothing to say”?
A: Sir, she didn’t answer some specific questions I asked, I don’t remember her saying “I’ve got nothing to say.”
Q: But she did finally talk, based upon this vague and not-very-promising offer?
A: If that is what you say, Sir.
Q: No, I’m asking you, Special Agent, she finally talked after you gave her a vague and not very promising offer, right?
A: Yes.
Q: In reality, you told her that if she didn’t “play ball” you would not be able to help her out?
A: I...never said that.
Q: You told SFC Jones that if she didn’t “play ball,” it was out of your hands?
A: I did, but I didn’t tell her that she had to talk.
CID, NCIS and OSI agents have absolutely no input reguarding whether or not a suspect is charged; that decision is made by the Trial Counsel and Command. Mr. Bilecki uses skilled cross-examination to show the panel members that CID, NCIS and OSI agents have no real charging authority despite their claims to the contrary. In the transcript below, exerpted from the trial referenced above, Mr. Bilecki forces an agent to admit to the deceptive implications he made to convince SFC Jones that her cooperation with him would ultimately help her case.
Q: You made SFC Jones think that you decided what charges should be preferred against her?
A: No.
Q: You made her think that you controlled her fate?
A: No.
Q: You never told SFC Jones, “Listen, if you don’t play ball, your retirement is history, that’s worth over a million dollars you know, think about your kids – I’m sure this was just a misunderstanding, nothing criminal.”
A: Never.
Q: You told SFC Jones, “Hey, we can charge you right now with larceny of over $100,000 of government funds – we’ve go no reason to believe you didn’t know exactly what you were doing when you filled out that BAH from, that you intened to steal hundreds of thousands – or you can play ball with us and and tell the command you just didn’t understand the form when you filled it out.”
A: Absolutley not.
Q: Neither you nor anyone at CID can make charging decisions?
A: No.
Q: The Trial Counsel makes that decision?
A: Yes.
Q: Typically with no input from you or anyone at CID.
A: I don’t know Sir.
Q: In fact, the Trial Counsel has no duty to even consult you, do they?
A: No, they don’t.
Q: And lately, CID’s input has been disregarded the by the Trial Counsel.
A: I can’t speak for CID Sir.
Q. You can speak for yourself, right?
A: Yes.
Q: And recently, you have had cases in which the Trial Counsel has ignored your advice?
A: Yes, that has happened.
Q: You told her that if she didn’t talk to you, her side of the story would never be told?
A: Yes I did.
Q: You told her this was her one and only only chance to tell her side of the story?
A: I told her this was her only chance to tell her story to us.
Q: Not just to CID, but you said it was her one and only chance to tell her side of the story?
A: No, to us.
Q: You’re aware that any charged Soldier has a right to a trial?
A: Of course.
Q: A right to a a lawyer?
A: Yes.
Q: That the Soldier can present a defense in court?
A: Yes.
Q: To call witnesses to testify?
A: Yes.
Q: To take the stand on her own behalf?
A: Yes.
Q: To tell the the panel what happened, her side of the story?
A: Yes.
Q: That before trial, she chould have her lawyer talk to the Trial Counsel and explain her side of the story?
A: That’s correct.
Q: So, Special Agent, it really wasn’t her only chance to tell her side of the story?
A: Like I said, I didn’t tell her it was her only chance.
Q: When you spoke to SFC Jones, you spoke with authority?
A: I’m not sure.
Q: Well, you didn’t come across as weak or timid, did you?
A: No.
Q: You’re taught at the at CID school to take take control of situations?
A: Yes, that is one of the many things we are taught, Sir.
Q: To exert authority?
A: Yes.
Q: You wanted to make sure that SFC Jones knew that you knew what you were talking about?
A: Yes.
Q: So you spoke convincingly?
A: I do my best.
Q: And you [did] that so she would accept what you said without question?
A: I wanted her to believe me.
Q: And you told SFC Jones that this was her one and only chance to get her side of the story out – to the agent who decided what to charge her with, who controlled her future?
A: You’re mis-characterizing it counselor.
Q: I don’t want to mis-characterize anything. Lets try this a different way...You told SFC Jones that she would be detailed a TDS lawyer shortly?
A: No, we discussed this already.
Q: You told SFC Jones that she could explain to her lawyer what happened?
A: No.
Q: And have her lawyer talk to the Trial Counsel, and explain her side of the story?
A: No.
Q: You informed SFC Jones that she could testify at trial and tell her side of the story to a militay panel?
A: No. We didn’t discuss that.
Q: Or to a Military Judge if she so chose?
A: Again, No.
Q: Correct me if I’m wrong, Special Agent, but it certainly sounds like you were trying to convey to SFC Jones that this was her only chance to tell her side of things.
A: You are wrong, Sir.
Having a Special Agent concede to his understanding that the Soldier, Sailor, Airman or Marine in custody would be given plenty of opportunity to present his side of the story shows the panel (jury) that the agent is dishonest and manipulative. A good defense attorney reminds the panel of these undesirable qualities throughout the trial and espeically during closing statements – before a verdict is determined.
With modern technology and the “CSI Miami Factor” many panel members may believe that special agents do not really need a confessions to get a conviction; they assume that DNA and other forensic evidence will prove guilt or innocence. CID, NCIS and OSI agents know otherwise. As important as forensics are in a case, they are often inconclusive or circumstantial. If the suspect didn’t leave a trail of blood or fingerprints at the scene of the crime, there may be nothing from which to collect DNA or other forensic evidence. Furthermore, labs such as USACIL often take months to process DNA and forensic evidence.
Agents are still trained to get a confession, no matter the circumstances.
In a recent case tried by Mr. Bilecki, two groups of men started a gang-related brawl outside of a nightclub one evening. In the course of this event, one Soldier was stabbed in the chest four times. Several eyewitnesses described the stabber as an African American male under six feet tall, weighing approximately 200 pounds and wearing a tan leather jacket. Witnesses also stated that the same man was bragging about the stabbing to fellow gang members. After the brawl, the Soldier was picked up and brought to CID to report “his side of the story.” In this case, Mr. Bilecki attacked the CID agents who interrogated his client and took the “confession” honing in on the blatant lack of forensic evidence in the case at that time. The client, here referred to as PFC Smith for the purposes of anonymity, was found NOT GUILTY on all charges, including attempted premeditated murder. The following transcript is derived from court records in that trial.
Q: You questioned PFC Smith shortly after the stabbing?
A: Yes.
Q: CID has Special Agents trained in forensic evidence collection?
A: Yes.
Q: Those Special Agents took evidence from the scene of the crime?
A: Yes, they did.
Q: Forensics can establish the identity of the person who actually committed the crime?
A: Yes.
Q: Fingerprints, for example?
A: Sure.
Q: DNA?
A: Yes.
Q: Sometimes, other forensics help determine who committed the crime?
A: Correct.
Q: In addition to forensic evidence, eyewitnesses can identify the perpetrator?
A: Sure.
Q: And sometimes, a Soldier or civilian will come forward and inform CID who committed the crime?
A: Yes.
Q: But in some cases, there is no forensic evidence?
A: That’s correct.
Q: No DNA evidence?
A: Correct.
Q: No eyewitness?
A: Correct.
Q: No witness of any kind?
A: Okay.
Q: Is that a yes?
A: Yes, that is true.
Q: When you questioned PFC Smith, you didn’t know if there was any forensic evidence?
A: At that point, we did not.
Q: Even if there was forensic evidence, there is no guarantee it would provide answers?
A: It always tells us something, but no guarantee it will tell us who did it.
Q: In some cases, no witnesses come forward?
A: True.
Q: You had no hard evidence tying PFC Smith to the stabbing?
A: Just a good description that he matched.
Q: So PFC Smith was a suspect?
A: Yes.
Q: Someone you wanted to talk to?
A: Yes.
Q: This was a pretty serious incident?
A: Yes, it was.
Q: A gang-related stabbing involving US Soldiers?
A: Yes, that is why it was such a high priority.
Q: It had been on the front page of the Stars and Stripes?
A: There were several articles.
Q: And in local and foreign newspapers?
A: As far as I know, yes.
Q: CID was under tremendous pressure to solve this case?
A: I wouldn’t say pressure, but we wanted to get the stabber off the streets.
Q: Not every case ends up on the front page of the Stars and Stripes?
A: That’s true.
Q: Without a confession, the stabber might walk?
A: Correct, although we would probably solved the case even if there was no confession.
Q: You don’t just want to solve the case, you want the stabber convicted?
A: My job is to solve the case, but we don’t want it to fall apart down the road, if that is what you are asking.
Q: Here, a confession solves the case?
A: It does.
Q: A confession is powerful evidence?
A: It can be, yes.
Q: It strengthens a weak case?
A: Of course.
Q: And it can point towards other evidence?
A: Yes it can.
Q: Corroborating evidence?
A: Yes.
Q: Corroborating evidence which further ties the stabber to the crime?
A: Maybe…Yes.
Q: Without a confession, there’s not a lot of evidence on PFC Smith.
A: I disagree; he matched the description provided to CID and he was seen at the club that night.
Q: Isn’t it true there were hundreds of people at the club that night?
A: Yes.
Q: And most were African American?
A: I don’t know about most, but many were.
Q: And a lot of people fit into the category of 6’0, 200lbs and tan jacket?
A: Possibly.
Q: So again, at the time of the questioning, without the confession, you wouldn’t have had much of a case against PFC Smith.
A: We were building the case.
Q: The case was not going to be solved without a confession?
A: I don’t know that.
Once CID, NCIS or OSI agents have decided for themselves who is guilty for a crime, their sole mission is to elicit a confession from the suspect. In order to accomplish this, agents isolate the suspect in an office or interrogation room. With total control over the suspect’s environment, the agents dictate when the Service Member eats, uses the bathroom, has a drink, smokes a cigarette, or experiences any contact with the outside world. In this isolated state, agents hope that the suspect loses hope or becomes disoriented, and confesses.
In this scenario, it is critical for an experienced military defense lawyer to expose these tactics for what they are: techniques designed specifically to elicit confessions. Bilecki Law Group attorneys conduct a thorough investigation of the crime scene and interrogation area prior to trial; this affords us a distinct advantage, as illustrated in the trial transcript exerpted in a actual trial Mr. Bilecki won.
Q: You took PFC Smith to an interrogation room?
A: It was a witness interview room.
Q: In the back of the CID office?
A: That’s right.
Q: It is not very big?
A: Not really.
Q: In fact, it’s quite small?
A: It is small.
[Photographs of the interrogation site are shown to witness.]
Q: There are no windows in the room?
A: No, there are not.
Q: The door to the interrogation room closes automatically?
A: Yes it does.
Q: You didn’t prop it open?
A: No.
Q: There were three men in that room?
A: Most of the time, yes.
Q: You placed a chair to the corner of the desk for PFC Smith?
A: As far as I can remember.
Q: PFC Smith sat in that chair?
A: He did.
Q: To the right of SFC Jones was a credenza?
A: Yes.
Q: Between the desk and the credenza was about two feet?
A: Sure. Maybe.
Q: You were present when my investigator and I measured that room, correct?
A: Yes I was.
Q: You saw the measuring tape?
A: I did.
Q: You saw us making a diagram and writing down numbers?
A: Yes I did.
Q: There were two feet between the desk and the credenza?
A: Probably.
Q: Behind PFC Smith were filing cabinets?
A: Yes.
Q: His chair was just about touching the cabinets?
A: I wasn’t paying attention to his chair.
Q: There was only three-and-a-half feet between the desk and those file cabinets?
A: Approximately.
Q: You sat in a chair on PFC Smith’s right?
A: Yes.
Q: You sat within two feet of PFC Smith?
A: No. I’m going to disagree, counselor.
Q: You were seated in front of the desk?
A: Yes.
Q: You were taking notes on that desk?
A: Yes.
Q: That desk is only 42 inches long?
A: Ah, yes.
Q: That’s three-and-a-half feet?
A: Yes.
Q: You’re right-handed?
A: Yes.
Q: You took your notes using your right hand?
A: Yes.
Q: The desk has a computer on it?
A: Yes.
Q: The computer was off to the right side?
A: Yes.
Q: So you must have been forced to use the middle of the desk to take notes?
A: Yes.
Q: So you were actually less than a foot-and-a-half from the corner of the desk?
A: That makes sense.
Q: The corner where PFC Smith was seated?
A: Yes.
Q: You interrogated PFC Smith for the next five hours?
A: We didn’t interrogate, we just questioned him.
Q: In the room we described?
A: Yes.
Q: With the exception of a few smoke breaks, PFC Smith never left the room?
A: No.
Q: The only people he spoke to where you and Agent Smalls?
A: That’s right.
Q: He never saw anyone except for you and Smalls?
A: Yes.
Q:You were in charge of him?
A: I was responsible for him.
Q: You were in charge.
A: I was following procedure.
Q:You followed procedure, without consulting PFC Smith?
A: Of course.
Q: Actually, that’s a ridiculous question, isn’t it, Special Agent – that you would consult PFC Smith on CID procedure?
A: Sure it is.
Q: Suspects don’t dictate how things are done. You follow procedure?
A: We are trained to follow procedure.
Q: PFC Smith went where you told him to go?
A: He did.
Q: You told him when to sit?
A: Yes.
Q: Where to sit?
A. Yes.
Q: When to stand?
A. Yes.
Q: When to be fingerprinted?
A: We fingerprint afterwards.
Q: And the decision to fingerprint afterwards was yours, not PFC Smith’s, correct?
A: That’s correct.
Q: Even what finger was going to be fingerprinted first?
A: It’s procedure
Q: He did exactly as you told him to do?
A: He complied.
Q: He didn’t have a choice?
A: I’m not sure if I folow you, counselor.
Q. He can’t decide what he was charged with?
A: No.
Q: What questions you ask him?
A: No.
Q: Whether he would be fingerprinted?
A: No.
Q: Or when?
A: No.
Q: Whether he was handcuffed?
A: He wasn’t handcuffed.
Q: And that was not his decision was it?
A: No.
Q: When he was going to be questioned?
A: No.
Q: How long he was going to be questioned?
A: No.
Q: You decided what was going to happen?
A: I did.
Q: What order it would take place in?
A: Yes.
Q: And how long it would take?
A: Yes.
Q: You established control?
A: I did.
Q: You were in control, not PFC Smith?
A. Yes.
While most law enforcement agencies around the country are required to videotape interrogations, CID, NCIS and OSI patently refuse to do so, no matter how serious the case. When asked, agents or agency representatives typically say that it is not part of their procedure. At The Bilecki Law Group, we assert that confessions aren’t video taped so panel (jury) members won’t see the coercive techniques employed to elicit false confessions.
Military panel members would be in a much better position to judge the credibility of a supposed confession if they were able to hear the tone of voice used, observe body language, and see the interaction between agents and the accused. To get the panel to question the validity of unlawfully elicited confessions, we often question Special Agents about how they assess credibility using sensory analysis (e.g. body language, eye contact, facial expression, tone of voice, etc.). By establishing that sensory input is necessary to assessing credibility, we show the panel the futility of untaped confessions. Successfully employing such a maneuver requires experience, mastery of trial technique, and perfect knowledge of the rights afforded to suspects by law. The transcript below is exerpted from trial records. Ultimately, the our cliet in this was was found NOT GUILTY.
Q: You testifed earlier that you have been a CID agent for 8 years?
A: Yes.
Q: That you have questioned thousands of witnesses?
A: Yes.
Q: And hundreds of suspects?
A: Yes.
Q: You’ve learned how to assess a Soldier’s credibility?
A: Yes, I have.
Q: Assessing credibility is an important part of your job?
A: Yes it is.
Q: When you are interrogating someone, you listen closely to what the person says?
A: Yes.
Q: You listen for inconsistencies?
A: Yes.
Q: You listen for internal inconsistencies?
A: Yes.
Q: And for external inconsistencies?
A: I’m not sure I follow you.
Q: Before you decided to interrogate PFC Smith, you investiated the case?
A: Yes.
Q: You had a good idea of what the facts were?
A: Yes.
Q: As you listened to PFC Smith, you compared what he was saying to the facts, as you understood them?
A: Yes.
Q: You listened for whether he answered the question you asked?
A: Correct.
Q: Or whether he tried to evade the question?
A: Yes.
Q: Whether he was able to recall details?
A: Yes.
Q: Obvious details?
A: Yes.
Q: Now you did more than simply listen to what PFC Smith was saying, you listened to the way he said it?
A: Yes.
Q: You listened to his tone of voice?
A: Yes.
Q: His inflection?
A: Yes.
Q: You listened for whether he emphasized certain words?
A: Yes.
Q: You listened for sarcasm?
A: Yes.
Q: For defensiveness?
A: Yes.
Q: Anger?
A: Yes.
Q: Regret?
A: Yes.
Q: Whether he spoke with ease?
A: Yes.
Q: Or stumbled over his words?
A: Yes.
Q: But you did more than listen, you also watched?
A: Yes I did.
Q: You watched to see if he looked you in the eye?
A: I did.
Q: If he was blinking excessively?
A: I didn’t check for that.
Q: If he smiled at inappropriate times?
A: That I did.
Q: If he was perspiring?
A: Of course.
Q: If he appeared relaxed?
A: Yes.
Q: Or tense?
A: Yes.
Q: If he appeared exhausted?
A: Yes.
Q: Or resigned?
A: Yes.
Q: Or smug?
A: Yes.
Q: You take all these factors into consideration in assessing a suspect’s credibility?
A: Yes.
Q: Or that of a witness?
A: Yes.
Q: In fact, in assessing credibility, the suspect’s body language, attitude and tone of voice often tell you more about whether you can believe this individual than the words he uses?
A: Yes.
Q: But you did not audiotape this statement?
A: No.
Q: Or videotape this statement?
A: No.
Q: You testified on direct examination to what you claim PFC Smith told you?
A: Yes.
Q: But that’s not the same as showing a videotape?
A: I disagree.
Q: Because you did not videotape this statement, the jury will not hear exactly what PFC Smith actually said?
A: I’ve testified to what PFC Smith told me.
Q: Or how he said it?
A: I told you. I’ve testified to what PFC Smith confessed to.
Q: You took no notes for the first hour?
A: Correct.
Q: Then you took notes on a pad of paper?
A: Yes.
Q: Two pages of notes?
A: Yes.
Q: You took the notes because you can’t recall everything you hear?
A: That’s one of the reasons; I like to review them before trial.
Q: Only two pages of notes, for a five-hour statement?
A: Yes.
Q: What you wrote on those pages does not represent everything PFC Smith said?
A: No, it doesn’t.
Q: The videotape would have captured exactly what was said?
A: Yes.
Q: Everything that was said?
A: Yes.
Q: Not just what you thought was important?
A: How many times do I have to say it, counselor? I already testified to what PFC Smith said.
Q: A videotape would have shown PFC Smith’s tone of voice?
A: Yes.
Q: His facial expressions?
A: Yes.
Q: His body language?
A: Yes.
Q: All the factors you’ve just testified to are indispensable to assessing credibility?
A: Uhm…yes.
Q: Because you chose not to videotape the statement, the panel cannot consider the same factors in judging the authenticity of this so-called confession?
A: True.
Q: Instead of seeing and hearing for themselves, the panel must rely on your credibility?
A: Yes.
Q: Special Agent, the panel hasn’t just been denied seeing and hearing how PFC Smth acted. They are being denied the opportunity to hear exactly what you said and how you behaved?
A: I told you what I said.
Q: Again, you don’t possess a perfect memory?
A: No, I don’t.
Q: And, again, a videotape would capture exactly what you said?
A: Yes.
Q: What Agent Smalls said?
A: Yes.
Q: How you said it?
A: Yes.
Q: Whether you raised your voice?
A: I didn’t raise my voice.
Q: A videotape would reveal whether or not you raised your voice?
A: Yes.
Q: Whether or not you attempted to coerce PFC Smith into confessing?
A: Sir, I did not attempt to coerce PFC Smith into confessing.
Q: For the first three-and-a-half hours of this five-hour statement, PFC Smith denied stabbing anyone?
A: Yes.
Q: A videotape would reveal whether or not you coerced my client into confessing?
A: It would show that I did not.
Q: A videotape would reveal whether or not you coerced my client into confessing?
A: Yes, it would.
Q: Whether or not you promised him leniency?
A: Yes.
Q: Whether or not you threatened him?
A: I did not threaten him.
Q: You understood my question?
A: Yes.
Q: You appreciate that the defense has a very different account of what happened in that interrogation room?
A: Yes.
Of particular note in the case referenced above is the effect of the “defense credibility deficit.” Your defense attorney is charged with the difficult task of proving his credibility to the panel; an unpsoken bias against the defense exists from the first moments of trial, and only a skilled, experienced defense attorney implements sure-fire techniques to overcome this potentially detrimental deficit. In the case above, Mr. Bilecki had previously established his credibility with the panel and thus, was able to discredit the agent’s testimony and methods. In the continued transcript below, notice how the balance of credibility shifts from the agent to Mr. Bilecki, and ask yourself: Will my representation have the necessary means to overcome the credibility deficit?
Q: A videotape would have shown exactly what transpired in that room?
A: Yes.
Q: Whether PFC Smith told you he was exhausted?
A: Yes.
Q: The only person who could contest what happened in the room is PFC Smith?
A: Agent Smalls was present.
Q: Agent Smalls? A fellow CID officer and friend of yours?
A: Yes.
Q: Agent Smalls is not going to contradict you, is he?
A: No.
Q: The only person who can contradict you is PFC Smith?
A: Yeah, if he wants to perjure himself.
Q: You would expect to win a credibility contest with PFC Smith?
A: Yes.
Q: Especially now that he’s charged with attemped murder?
A: No, just in general.
Q: So, in your mind, there’s no downside to giving this panel a stilted version of what happened in that room?
A: I testified truthfully.
Few military defense lawyers have the experience and fortitude to challenge written statements, particularly a signed confession; however, the dishonest procedures agents use to acquire signed confessions must be exposed at trial in order to discredit the confession and the agents who took it. It must be revealed that the client did not type the statement, choose his own wording, decide what to include or exclude, and either did not appreciate the significance of word choices made on his behalf or was too resigned and overcome with mental fatigue to challenge the agents. The following transcript was exerpted from court records; Mr. Bilecki’s client was FULLY ACQUITTED.
Q: Instead of a videotape, we have a written statement?
A: Yes.
Q: It is done in a question-and-answer format?
A: Yes.
Q: Like it was taken down word for word?
A: Yes.
Q: Similar to the court reporter here in this court?
A: I don’t know what the court reporter does.
Q: You have testified in numerous trial, correct?
A: Yes.
Q: And you are aware that everything we both say is being recorded?
A: Yes.
Q: And that everything that is recorded is later transcribed word for word?
A: Ok, yes.
Q: So the statement in question here is a verbatim account of what happened?
A: Yes.
Q: Of all the questions that were asked?
A: Yes.
Q: And how those questions were answered?
A: Yes.
Q: But it was not typed by a court reporter. It was typed by you, right Special Agent?
A: Yes.
Q: You didn’t go to court reporting school?
A: No.
Q: You’ve not been tested in transcribing, like the court reporter?
A: No.
Q: Tested multiple times to make absolutely sure that you take down everything accurately?
A: No.
Q: You can’t type fast enough to take down a conversation in verbatim form?
A: It depends.
Q: So, while this looks like a question-and-answer format, it is really a summary?
A: Well, the questions represent what we asked him, and the answers represent what he said.
Q: You did not write down everything that was said verbatim?
A: Well, not verbatim. But close enough.
Q: And the answers were not taken down verbatim?
A: No. Not verbatim.
Q: [Handing the statement to the witness] Special Agent, please read that statement silently to yourself and look up at me when you are finished.
A: Okay.
Q: [Retrieving the document] Would you agree that it took you approximately four-and-a-half minutes to read that?
A: That is a good estimate.
Q: So you would agree that it took about that long?
A: Yes.
Q: You testified earlier that the interrogation lasted for nearly five hours?
A: Yes.
Q: Only five minutes of questions are represented for nearly five hours of interrogation?
A: Well it takes time to write it all down.
Q: Nearly four hours and fifty-five minutes to write it down?
A: Ahh, yeah.
Q: You interrogated PFC Jones for almost five hours?
A: Yes, I think we have established that counselor.
Q: This statement is only six pages long?
A: Correct.
Q: There are only 51 questions?
A: I’m not sure about the number of questions.
Q: Would it refresh your recollection to review the document again?
A: Yes, there are 51 questions.
Q: And 51 answers?
A: Yes.
Q: In a 10-minute conversation, you could ask someone more than 51 questions?
A: Yes.
Q: During a five-hour interrogation, you must have asked PFC Jones 1000 questions?
A: We didn’t ask him that many questions. I spent a lot of time typing.
Q: You asked him at least 500 questions?
A: I don’t know.
Q: At fewest, 100 questions?
A: I’m sure we asked him many questions.
Q: A few least 100 questions?
A: Yes.
Q: So of the hundreds of questions [asked], only 51 are represented?
A: Correct.
Q: At leaset 149 questions are missing?
A: We asked some of the questions multiple times.
Q: Even if that was true, at least 149 questions are unaccounted for?
A: Yes.
Q: And, therefore, at least 149 answers are missing?
A: Everything PFC Jones told us is represented in that statement!
Q: PFC Jones gave at least 200 answers?
A: Yes.
Q: And only 51 answers are represented?
A: Yes.
Q: So, some of the answers are your summaries of more than PFC Jones’s answers?
A: Okay.
Q: PFC Jones did not decide how these answers would be summarized?
A: No.
Q: You decided how they would be summarized?
A: Well, yes.
Q: And because you can’t type fast, you were always playing catch-up?
A: Yes.
Q: Relying on your memory of what was said?
A: Sometimes.
Q: You decided what words to use?
A: I used the words he used.
Q: You decided what to include?
A: I included everything.
Q: You decided what to exclude?
A: I did not exclude anything.
By having the suspect initial each page and sign the final page of the statement, Special Agents hope to neutralize any efforts by either the Soldier or his defense attorney to claim that he never read or understood the statement. Most suspects sign their written statement, many without even reading it. Those who do read the statement may be too overwhelmed or too resigned to challenge its accuracy. Some even believe that signing the statement will help curry favor with the Special Agents and ameliorate sentencing.
In reality, few CID, NCIS or OSI agents want the suspect to review the statement; inviting scrutiny of any kind at this moment could prove disastrous. We can undermine the importance normally attached to a signature by demonstrating, through cross-examination, that the defendant was given no real opportunity to review “his” statement.
Q: We have been going at this, for what, about two hours now?
A: Yes.
Q: It’s been a little grueling, hasn’t it?
A: I’ll agree with that.
Q: You’re a little fatigued, no?
A: Just a little.
Q: But you’ve testified in this very courtroom before, haven’t you?
A: Yes.
Q: This isn’t unfamiliar territory?
A: No.
Q: And you’re not here alone?
A: I don’t understand your question.
Q: Well, the military judge is here to oversee the questioning?
A: Yes.
Q: There is a trial counsel who can object to my questions?
A: Yes.
Q: You had some idea of what you’d be asked?
A: Not everything you’ve covered.
Q: You know you can ask for a break, if you need one?
A: True.
Q: You slept well last night?
A: I did.
Q: You ate breakfast?
A: Yes.
Q: And lunch?
A: Right.
Q: And yet this has been tough?
A: It’s not that bad.
Q: You told me not two minutes ago, Special Agent, that it was grueling, right?
A: Yes.
Q: You typed the statement into your laptop?
A: Yes.
Q: It was tedious work?
A: Yes.
Q: When you finished, you printed it out?
A: Yes.
Q: It was seven pages long?
A: Yes.
Q: Single-spaced?
A: Right.
Q: When you did that it was early in the morning?
A: Correct.
Q: Except for one break, PFC Jones had been in that room for almost five hours?
A: Yes.
Q: The room with little ventilation?
A: Yes.
Q: With you and Special Agent Smalls?
A: Yes.
Q: At the end of the interrogation, you handed PFC Jones a seven-page, typed, single-spaced document?
A: Yes.
Q: You made sure he initialed each page?
A: Yes.
Q: You made sure he signed the last page?
A: Yes.
Q: You included a line, at the very end, in which he, PFC Jones, acknowledges that he read the statement and agreed with what was written?
A: Yes.
Q: Obviously, you typed that before PFC Jones had read the statement?
A: Yes.
Q: Or stated or acknowledged his agreement with what was represented in the statement?
A: Yes.
Q: PFC Jones did not read this statement, did he, Special Agent?
A: I handed him the statement. He appeared to be reading it. He initialed each page and signed the last page.
Q: He told you he was too tired to read the statement?
A: No, sir.
Q: He read the whole statement?
A: Yes, he appeared to be reading it.
Q: Reading it carefully?
A: Yes.
Q: You testified on direct that you told him to point out any errors?
A: Yes.
Q: And according to you, he saw no errors?
A: Correct.
Q: He read it so carefully that he overlooked you having misspelled his name on the second page?
A: I didn’t realize I misspelled his name.
Q: No, Special Agent, and, apparently, neither did PFC Jones. Yet you claim that this hungry, sleep-deprived Soldier reviewed this document after five hours of grueling interrogation?
A: That is what I said.
Level the Playing Field:
Accusations of criminal activity place Service Members under inordinate amounts of stress and distress. Special Agents in charge of criminal cases are determined to elicit a confession from the suspect they’ve already convicted in their minds, and will often test the limits of lawfulness to get one. In order to combat a signed “confession” at trial, you need an experienced, saavy, aggressive defense that knows the real story behind false confessions. If you have confessed, you don’t have to plead guilty. Contact The Bilecki Law Group, LLLC to discuss all of your options and level the playing field.