Court Martial Attorney Defense Strategy & Tactics
Aggressive Court Martial Lawyers With a History of Winning Cases
Would it surprise you to hear that many
military defense lawyers don’t independently investigate their cases? Or that they don’t
personally conduct in depth pre-trial witness interviews? Would it surprise
you that after doing nothing more than reading the case file,
many military defense lawyers will tell you to simply plead guilty?
If you knew the minds of the majority of defense teams, this wouldn’t
be a surprise at all. Most see you as a lost cause. Most realize that
they just don’t have the experience or knowledge to properly defend you.
More importantly, they really know what you’re up against:
a 90% military conviction rate.
The odds are rarely any better for service members facing a tough legal
battle over a divorce or the custody of his children. No one will listen
to him—not his wife, not his family, and often times, not even his
own lawyer. It doesn’t matter that the particular service member
lawyer’s freedom for years. That’s not even taken into account by the lawyer,
who often performs the bare minimum to defend his client’s freedom
and rights in court.
A seasoned civilian defense lawyer knows what you’re up against,
whether it’s here in Hawaii at state court or abroad during a court-martial.
You don’t. Unless you retain a law firm that can bring in the big
guns and fight back, you
will be convicted or lose your case. Your reputation will be damaged, your
freedom will be at risk, and if you’re facing sexual assault allegations,
you will be registered a sex offender.
Pleading Guilty Isn't a Strategy. It's Surrender.
"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."
–Joel Hirschhorn, legendary criminal trial lawyer and early mentor
to Tim Bilecki
Bilecki & Tipon is retained, we immediately initiate a fact-finding mission focused on
understanding of your side of the story and all details relevant to your
case. Our experienced investigators interview all witnesses, scour law
enforcement files for “misplaced” or “inconvenient”
evidence, and can uncover the truth by hiring our own expert DNA and forensic
specialists. Furthermore, we can revisit each and every crime scene, collect
additional evidence that may have been overlooked, and can even request
to see the room in which our clients are interrogated.
It would amaze you to know how few attorneys actually insist on performing
the above actions. Most will rely solely on evidence collected by CID,
NCIS, or OSI. But a hard-hitting court martial 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 independent defense investigation or documented crime scene evidence,
critical evidence may be lost
Some of our greatest victories and comeback stories have been due to exploring
the scene of a crime
after CID, NCIS, or OSI completed their investigations. Witnesses prepped by
the prosecution are left baffled by new evidence brought to court by a
scrupulous defense attorney. Armed with knowledge and evidence gained
from a first-hand investigation, the defense can relentlessly cross-examine
witnesses and law enforcement agents with confidence.
Pre-Trial Preparation: The Article 32 Preliminary Hearing
“…an Article 32 preliminary hearing is not intended to serve
as a means of discovery and will be limited to an examination of those
issues necessary to determine whether probable cause exists to conclude
that an offense or offenses have been committed and the accused committed
–Stated purpose of the Article 32 preliminary hearing
Everything we knew about the Article 32 hearing changed in 2015, when substantial
rights were taken away from those in the military accused of crimes. Now, an
Article 32 “preliminary hearing” is essentially limited to determining whether or not the suspect had probable
cause to commit the offense. Alleged victims are now allowed to be present
with their counsel during the entire hearing but are no longer required
On top of that, the examination of witnesses is now severely restricted
to matters directly related to probable cause, and the defense is no longer
able to use the hearing to obtain discovery in the case and the standard
for recommending that a case be referred to trial has been lowered. The
deck continues to be stacked against you.
With the sweeping changes to the Article 32, it has become common practice
for both the prosecution and the defense to treat Article 32 hearings
as a mere “formality” or “speed bump” on the road
to trial. So it can take the prosecution by surprise when the Bilecki
& Tipon team comes to an Article 32 prepared to call witnesses, present
evidence, and cross-examine witnesses called by the prosecution. It can
also take the prosecution by surprise when we make a strategic decision
to waive the Article 32 hearing and keep them guessing as to our defense strategy.
In extraordinary cases, the strategic deployment of key evidence along
with consistent pressure on the prosecution will result in either the
Preliminary Hearing Officer’s recommendation to the Courts-Martial
Convening Authority to not refer the case to trial, or the dropping of
all charges by the prosecution.
The above is the best-case scenario, and should
always be tempered by the wisdom of experience and a dose of reality. We’ve
seen cases where novice defense attorneys attempt to “try the case”
at an Article 32 Preliminary Hearing, thinking that a great show for the
Preliminary Hearing Officer will prevent the progression to trial.
This, however, can backfire in the defense’s face.
Results could include:
The Convening Authority deciding to go to trial anyway, allowing savvy prosecutors and Special Victim Prosecutors (SVPs) a chance
to record all cross-examination questions posed by the defense to prep
their witnesses for the trial. The result is often a conviction.
A complete disclosure of the defense’s playbook. The prosecution can now “prosecute around the defense” or
worse, develop a rebuttal case to present to the panel after the defense
rests. This usually results in a conviction.
Doing more harm than good. It’s not the Preliminary Hearing Officer that decides whether or
not to refer a case to courts-martial. It’s the Courts-Martial Convening
Authority. Attempting to impress the Preliminary Hearing Officer doesn’t
by any means guarantee that the Commanding General or Office of the Staff
Judge Advocate will buy into the defense’s story. It more often
gives away the defense’s strategy, which 9 times out of 10 results
in a conviction.
Without a proper initial, independent defense investigation to develop
a trial strategy early on, a careless military lawyer can do significant
damage at an Article 32 Preliminary 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 determined prosecutors
and a system that’s increasingly designed to produce convictions.
Cross Examination and the Jury Trial: The Keys to Leveling the Playing Field
Mastering successful cross-examination techniques and properly utilizing
those techniques in the heat of trial is the most vital task of a defense
attorney. Experienced trial lawyers know the majority of a court-martial
is often devoted to the prosecution's case. Inherent to a defense
trial strategy then is dissecting, exposing, and crippling the government's
key evidence and witnesses. Cross-examination is a key factor in this process.
At Bilecki & Tipon, experience tells us that pre-trial investigations
alone aren’t enough to win a trial. Article 32 preliminary hearings,
even when masterfully orchestrated, aren’t enough. Pre-trial motions
or wordy "ivy league" legal arguments aren’t enough. Opening
statements, which are skillfully utilized to give the jury a roadmap of
the case and overcome confirmation bias, aren’t enough. Even soap-box-pounding,
impassioned closing arguments aren’t enough to win your case.
But when a vigorous, heavy-hitting, experienced civilian defense attorney
takes out a government witness with a blistering cross examination, it’s
a game changer. A proper cross examination can expose a sloppy law enforcement
investigation, reveal a coerced "confession," and betray the
witness's self-serving lies.
Winning cross-examinations don’t happen by chance. They require meticulous preparation, a thorough pre-trial investigation,
and military trial experience. That said, an attorney skilled in the art
of cross-examination is absolutely worth their weight in gold. Without a fearless, thorough cross-examiner, a.k.a. a gunslinger, your
conviction is all but inevitable. If you’re facing court martial
charges, ask yourself if your free military lawyer is up to the task of
taking on the witnesses against you and truly defending your freedom.
Overcoming the Credibitiliy Deficit
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 (the jury) 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.
From the very beginning—before opening arguments even—you’re
deeply entrenched in a credibility deficit. And it’s up to your
defense team to dig you out.
This pre-existing prejudice or guilty-until-proven-innocent mentality against
the defense is a staple of all court cases. Only a true gunslinger can
overcome the credibility deficit and gain the panel's trust and win
the case. If an inexperienced defense attorney represents you, he or she
may very well help secure your conviction. A panel must know you, like
you and trust you in order to acquit you.
You’ve Been Prosecuted Unfairly. You Need the Best to Set the Record Straight.
We have a winning strategy that has proven successful time and time again.
If you truly believe that you’re being prosecuted unfairly, and
you’re passionate about fighting for your innocence, then take a
stand. Find allies that understand the system and the stakes. Let the
gunslingers at Bilecki & Tipon fight for you.
Call Bilecki & Tipon to help
you level the playing field in your case TODAY.
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