Court Martial Attorney Defense Strategy & Tactics
Aggressive Court Martial Lawyers
When The Bilecki Law Group is retained, we immediately begin working to gain a complete understanding of your side of the story and facts relevant to your case. Your military defense attorney launches a thorough investigation that includes interviewing all possible witnesses, and scouring the law enforcement file. Discussions with the prosecution occur, to gain insight and let them know we mean business. For some reason, other firms often overlook this initial investigation, which is odd, because it is a critical step in building a successful defense.
Bilecki believes that pleading (negotiating for reduced penalties) should be a last resort; a "not guilty" verdict or dismissal of charges is the desired goal. The Bilecki Law Group constantly operates under the principle that those who don't commence immediate preparations to win at trial will lose at trial.
Many law firms and civilian military defense lawyers do not independently investigate cases, which is a critical error that jeopardizes winning cases. Bilecki, when examining sworn statements taken by law enforcement, routinely discovers false, misleading or totally fabricated "sworn statements." The Bilecki Law group utilizes personally conducted witness interviews and investigations to formulate a solid trial strategy from the case outset.
Unlike many military defense attorneys, Bilecki formulates and implements a defense strategy of winning at trial when questioning witnesses at Article 32 hearings. The initial, independent investigation forms the foundation for a successful trial.
At trial, savvy law enforcement agents and prosecutors expect a good defense attorney to have familiarized himself with their reports; however, few will expect the defense attorney visited and documented the scene of the crime, sites where evidence was collected, or the room in which the client was interrogated.
Without an independent examination of critical sites like these, it is all but impossible for defense attorneys to cross-examine CID, NCIS or OSI agents thoroughly. They have to rely on photographs, diagrams and their imagination. Then, when the CID, NCIS or OSI agents take the stand and lie to the panel, the military lawyers, not having visited the sites, will either miss the lie, or second-guess themselves.
Whether it is a barracks room where an alleged rape occurred, a street where an Soldier was involved in a brawl, or an NCIS interrogation room where a Marine allegedly "confessed" to a crime, when Bilecki goes to a scene, he leaves no stone unturned and follows up on valuable leads. A hard-hitting military trial lawyer simply cannot depend on law enforcement
to properly document evidence, especially evidence that may undercut their theory of the case. If your assigned defense counsel has not conducted an investigation or documented crime scene evidence, critical evidence may be lost forever. It may be time for a civilian military lawyer.
One of Mr. Bilecki's early mentors, legendary Miami criminal trial lawyer, Joel Hirschhorn, said: "To win, you must focus on the quality of your representation, not the quantity of cases. You must investigate, organize, prepare and present your case the old fashioned way: hard work, long hours, meticulous attention to even the smallest detail, a lot of perspiration and a little inspiration." This valuable teaching has guided Bilecki for over a decade and is reflected in every aspect of his work and the work of the court martial lawyers and staff at his firm.
That "little inspiration" often comes while exploring the scene of the crime. Many of Mr. Bilecki's best ideas for cross-examination come during this initial investigation, when his team document critical evidence often missed or undocumented by law enforcement. When witnesses see photographs taken by the defense team, they know a thorough investigation has been conducted; at the Article 32 hearing or trial, these witnesses know that any efforts to lie or bend the truth will be unsuccessful.
Armed with knowledge and evidence gained from a first-hand investigation, the defense can relentlessly cross-examine witnesses and law enforcement agents with confidence. By demonstrating mastery over even the smallest details of the crime scene, witness statements, and law enforcement reports, the defense attorney can dominate witnesses during cross-examination. Be wary of any court-martial lawyer or criminal defense attorney - military or civilian - who does not (or cannot) conduct a thorough, independent investigation early in the proceedings.
The Article 32 Hearing
The stated purpose of an Article 32 hearing is "to inquire into the truth of the matter set forth in the charges under the UCMJ, to consider the form of the charges, and to secure information to determine what disposition should be made of the case in the interest of justice and discipline." Often, prosecutors (and sometimes defense attorneys) treat the Article 32 hearing as a mere "formality" or "speed bump" on the road to trial. At The Bilecki Law Group, however, the Article 32 hearing can be an integral component in a strategic pursuit of a "not guilty" verdict or case dismissal.
While often compared to a Federal Grand Jury proceeding, an Article 32 hearing is different in several significant ways. Notably, the defense has additional rights at the Article 32 that can be utilized as part of a strategic plan, including the right to call witnesses, present evidence, and cross-examine witnesses called by the prosecution.
In reality, the Article 32 hearing forces the prosecution to prove to an independent Investigating Officer that sufficient evidence exists to proceed to trial. The Article 32 Investigating Officer will listen to all the evidence presented and make a recommendation as to whether the charges should go forward and if so, at what level (Summary Courts-Martial, Special Courts-Martial, General Courts-Martial). This recommendation is provided directly to the General Courts-Martial Convening Authority, usually the Commanding General, along with recommendations from the Office of the Staff Judge Advocate and the chain of command.
It is essential to remember that the Convening Authority decides if charges go forward, not the Investigating Officer. Forgetting the importance of this essential detail, many defense attorneys attempt to blindly "try the case" at the Article 32 hearing, thinking that a great show for the Investigating Officer will prevent the progression to trial. While this can happen in some situations, it is certainly not the norm across the military. Military lawyers who commit this grave error hazard a cache of possible effects:
Savvy prosecutors and Special Victim Prosecutors (SVPs) will subsequently take audio recordings of the cross-examinations conducted during the Article 32 hearing and replay them for witnesses scheduled to appear at trial; what seemed like a blistering cross-examination at the hearing becomes ineffectual and mediocre when it matters most, since witnesses will be prepared to field difficult questions. The result is often a conviction.
Just as damaging or possibly more damaging, the inexperienced defense attorney has just provided prosecutors with an all-access pass to his playbook. Prosecutors will know your attorney's defense strategy well before trial, allowing them to devote considerable time and effort to "prosecuting around the defense" or worse, developing a rebuttal case to present to the panel after the defense rests. This usually results in a conviction.
Without a proper initial investigation to develop a trial strategy early on, a careless defense lawyer can do significant damage at an Article 32 hearing that may, in fact, contribute to a conviction. Retaining an experienced court-martial lawyer is often your only chance to level the playing field against experienced, determined prosecutors.
Cross-Examination: A Key to Leveling the Playing Field
For a defense lawyer to win trials, he or she must be a gunslinger and an expert cross-examiner. There may be no more vital task than mastering successful cross-examination techniques and properly utilizing those techniques in the heat of trial. Many experienced trial lawyers would agree the majority of a court-martial is devoted to the prosecution's case. Inherent to a defense trial strategy is dissecting, exposing, and crippling the government's case. Cross-examination is a key factor in this process.
A military court martial is a chess match, not a game of checkers. Heavy-hitting, winning cross-examinations do not happen by chance. Building a powerful cross-examination requires meticulous preparation, a thorough pre-trial investigation and military trial experience. Is your assigned military lawyer playing checkers or chess?
At The Bilecki Law Group, experience tells us that the pre-trial investigation alone does not win trials, and few cases get "dropped" after the Article 32 hearing. Pre-trial motions or wordy "ivy league" legal arguments do not win trials. Opening statements are required to give the panel a road map of the case, but they do not win trials. Even a soap box-pounding, impassioned closing argument does not, by itself, win a trial.
Effective cross-examination, based off a thorough investigation, is a major key to winning a trial. Done properly, cross-examination can expose the sloppy law enforcement investigation, the coerced "confession," the command's unlawful influence and the witness's self-serving lies. Cross-examination is an indispensable skill to the experienced court martial trial lawyer. Without a heavy-hitting, thorough cross-examiner, a.k.a a gunslinger, your conviction is all but inevitable. Most military lawyers are shamefully inept at the art of cross-examination, evidenced by the military's 90%+ conviction rate. If you are facing court martial charges, ask yourself if your free military lawyer is up to the task of truly defending your freedom.
Overcoming The Credibility Deficit
If the panel (jury) members sense your military defense lawyer's weakness, inexperience or lack of confidence, they simply may not trust the information he or she presents - regardless of its accuracy. It may not matter what story an inexperienced defense lawyer puts forward during opening statement, what points he or she scores during cross-examination, or what arguments are made during closing, if the panel is not convinced, you may be convicted.
Military prosecutors have the luxury of "riding into the courtroom on a white horse," doing justice, ensuring good order and discipline and putting "dirt bags" in prison. Most panel members automatically assume the credibility of the trial counsel; who happens to work for the Staff Judge Advocate (SJA) who happens to advise the Commanding General, who happens to appoint panel members.
The military defense lawyer, on the other hand, is initially perceived as a pain in the command's side and as the guy who stands in the way of "doing justice." The defense team stands before the panel with what the firm calls a "defense credibility deficit," a pre-existing prejudice against the defense. Despite the theory that you are "innocent until proven guilty," the reality of a military court-martial is that a Solider, Sailor, Airmen or Marine is often guilty until proven innocent. Only a true gunslinger can overcome the credibility deficit and gain the panel's trust and win the case. If an inexperienced defense attorney who will be distrusted by panel members represents you, your own representation may help secure your conviction. A panel must know you, like you and trust you in order to acquit you.
What Many Military Defense Attorneys Do Wrong
After nearly a decade in the criminal defense realm, Bilecki has seen some outstanding cross-examinations (the ones that can win cases) and some horrific cross-examinations. Unfortunately, most detailed military defense attorneys are not effective cross-examiners. Most simply lack the trial experience necessary to master the art of cross-examination.
In the military, most Judge Advocates who practice criminal defense are only assigned to a defense position or billet for 18 - 24 months, which is nowhere near enough time to develop case-winning, cross-examination skills. Further exacerbating the problem, many military defense attorneys are trained as military prosecutors and never receive proper training in the fundamentals of cross-examination.
Bilecki has represented hundreds of clients, has significant criminal defense experience and has been heralded as one the best cross-examiners in the business.
How our Court Martial Attorneys Level the Playing Field
Military criminal trials are immensely complicated by a variety of factors, and having an inexperienced defense attorney who doesn't have the experience or drive to navigate such a legal minefield makes your conviction all but inevitable. The Bilecki Law Group is devoted to defending military personnel and has the experience to traverse the legal battleground successfully. With the deck stacked against you, don't gamble on a losing hand.
Call The Bilecki Law Group to discuss all of your options, and level the playing field in your case.
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