Military Criminal Charges & Court Martial Process
What Are You Up Against When Charged With a Military Crime?
In an ideal world, the justice system would be fair, unbiased and designed
to ferret out the truth. In the court-martial arena, that isn’t
the case. Military conviction rates must remain high to ensure good order
and discipline and to create the public perception that misconduct is
not tolerated. To make sure this happens, the military stacks the deck
against an accused and oftentimes attempts to win at all cost.
In today's military justice system, those who are criminally accused
are at a shocking disadvantage when fighting against the prosecution and
the command. The command, law enforcement, Staff Judge Advocate's
Office and prosecution are all on the same team, and that team has only
one goal: winning their case against the accused. This is done in the
same way any great military wins a war, by overwhelming their enemy, dominating
the battle space and creating an unfair advantage.
The government will come at you with everything they have to secure a conviction.
The examples listed below are just a few of the tactics, techniques and
procedures that you should expect to see as an accused standing trial at
Military Prosecutors Are Experts at Pitting the Jury Against You
The military hand selects its most experienced, aggressive, and hard-nosed
trial attorneys to prosecute your case. The sole mission of these elite
trial attorneys is to convict service members that are charged with sexual
assault cases. Most military prosecutors have tried—and won—dozens
of sexual assault cases, and understand exactly what it takes to win in court.
If this were a fair system, the accused would receive a defense attorney
with the same level of experience as the average military prosecutor.
actually often get is a recent law school graduate that often doesn’t have
experience trying sexual assault cases. This is by design, not happenstance.
The military conviction rate hovers over 90% and the military continues
to do whatever possible to keep it that way.
Your Military Defense Attorney Will Be Outnumbered and May Be Outmatched
The military loves assigning not one, but
two or more prosecutors to try sexual assault cases in court. This means that more often than
not, the prosecution is coming at you with
twice the amount of legal experience as your defense team—and often a
lot more. And don’t think you’ll get off easy if your case
isn’t related to sexual assault. If you’re accused of a different
crime, the prosecution typically assigns an experienced Senior Trial Counsel
(STC) to lead the prosecution.
But that’s just the beginning. The government has a literal “army”
of support staff for their prosecution teams. Its mission is the same
as the prosecutions, which is to secure a conviction at all costs. These
support teams include civilian support attorneys known as "Highly
Qualified Experts" (HQE's), a senior military supervisor known
as a Chief of Justice (O-4), a deputy Staff Judge Advocate (O-5), a Staff
Judge Advocate (O-6), and a team of enlisted paralegal support. And what
does the defense team get? At best, maybe one enlisted and overworked
“paralegal,” that also has another dozen or more cases he
or she is working on.
You’ll Face an Opposition With an Unlimited Budget
Anyone who says money can't buy justice has never been criminally accused.
Investigations, expert consultants, and the trails themselves all come
with heavy price tags. The government, of course, is happy to spend taxpayer
dollars. To them, money is no object, resources are endless, and personnel
are always on hand. As many as a half dozen investigators are often flown
in to conduct crime scene investigations and witness interviews, and later
on, that same prosecution can fly those witnesses out to trial to testify
against the accused.
If the case involves complex
forensic evidence such as DNA, serology, or computer forensics, the government has the ability to consult
with, and pay for, the best experts in the country. If the case goes to
trial, they have the resources to fly to them to anywhere in the world
necessary to testify. These specialists are so expensive that the defense
often has to rely on evidence and testimony of the government’s
expert rather than hire one on their own.
You’ll Be Taken for a Ride By Corrupt Law Enforcement and Criminal
In our opinion, the agents in the military's criminal investigative
division, including CID, NCIS and OSI, are some of the most corrupt and
unethical in the business. Overwhelmingly, these agents aren’t interested
in anything but securing a conviction and moving on to the next case.
These government agents aren’t looking for the truth, they’re
not trying to prove your innocence, and they’re certainly not on
Countless cases exist where innocent service members have been in a CID
interrogation and provided law enforcement with exculpatory evidence or
even alibies, and the agents refuse to even document or look at the evidence.
The agents often then call the service member a liar and keep him or her
in the interrogation room until they get an admission or a confession
– even to a crime that wasn’t committed. At trial, these agents
routinely take the witness stand, take an oath to tell the truth, and
blatantly perjure themselves. Even worse, many of these agents have been
well coached on their "testimony" prior to trial by the prosecution
team who wants to win at all costs.
The defense relies on the government’s evidence at its own risk.
Any evidence the defense
could have used was probably ignored during the investigation, and there is little
hope of discovering it once a trial has begun.
The Government’s Own Massive Evidence Labs Aren’t Available
to Your Defense Team
Many serious courts-martial cases involve complex forensic evidence such
as DNA, serology, metadata, sexual assault forensic examinations and forensic
psychiatry. In these cases, the government has the resources of its law
enforcement team, the United States Army Criminal Investigative Lab (USACIL),
the Defense Computer Forensics Lab (DCFL), the toxicology labs at Tripler
Army Medical Center and Brook Army Medical Center, and some of the best
medical and mental health providers at Walter Reed and other premier military
If the military doesn’t have the expertise needed in-house, the government
routinely contracts and hires the best experts they can find in the given
field. The military defense team, on the other hand, simply doesn’t
have the same access to these resources. Under the UCMJ, if the defense
requires government funding for an expert consultant or witness, it must
make a detailed request for the specific expert to the Convening Authority.
This detailed request will necessarily require the defense to provide
its case theory and articulate with specificity to the government why
the expert is needed. This process, in and of itself, requires the defense
to "show its hand" and gives the prosecution a massive tactical
advantage. The government, of course, isn’t required to approve
the request, and routinely denies the defense requests for expert consultants
Witnesses That Have Struck Backroom Deals With the Government
Military prosecutors have the ability to grant offers of leniency, immunity
or other deals to witnesses in exchange for desired testimony. This often
occurs in cases where the alleged victim has committed misconduct and
is scared of being prosecuted for his or her misdeeds. The government
can essentially wipe away all of their misconduct in exchange for the
testimony they need in the case. This scenario also happens often in “snitch”
cases, where the government will agree not to prosecute a known criminal
or to cut time off the sentence of a service member serving time in exchange
for their favorable testimony.
In the business, this is known as "buying testimony," and the
option isn’t available to the defense. In fact, if a defense attorney
“bought,” coerced or threatened witnesses into telling a certain
story, they could be sanctioned and criminal prosecuted. However, prosecutors
“buy testimony” regularly, but instead of money, the testimony
is purchased with the coin of freedom.
You’ll Only See Your Attorney
AFTER Charges are Preferred
Standard military policy dictates that service members who are under investigation
shouldn’t be detailed a military lawyer until after charges have
been preferred against them. This puts the service member at a monumental
disadvantage when defending their case. If the system was designed to
be fair and just, the military would ensure that all service members receive
a defense attorney
immediately upon being investigated to ensure that all exculpatory evidence is obtained
and to keep law enforcement honest. This simply isn’t the case under
the current system.
In other cases, the government will often spend months investigating a
case, prefer charges against an accused, and then set the Article 32 preliminary
hearing date for only three to five days later. A defense attorney only
gets detailed upon the perferral of charges. And when the defense then
requests a delay, the government typically opposes and denies it. This
denial of requested delays also happens throughout the court-martial process.
While the government has had months, and sometimes years, to investigate
and prepare their case, the military lawyer is expected to be ready to
fight at the Article 32 in a matter of days.
Military Defense Lawyers Don’t Always Have Your Best Interests at Heart
Although detailed military lawyers are part of a separate organization
from the command or the Staff Judge Advocate's Office, they’re
still "part of the JAG family," and often have billets as military
prosecutors immediately prior to or immediately after their time as a
military defense attorney. In some cases, especially high profile ones,
extreme pressure is put on military defense lawyers not to "burn
bridges" or use the "all in" approach, even though such
approaches may be necessary to get an acquittal.
Even worse, there has been a growing trend in the Army to intentionally
assign inexperienced defense attorneys, some of whom have never tried
a case in their lives, to the Senior Defense Counsel positions where they
lead, supervise and mentor the junior defense attorneys in the region.
In our opinion, this is intentionally done so that the government prosecution
and law enforcement team will be able to dominate the defense and increase
their conviction percentage.
Leveling the Playing Field - One Case at a Time
Does that sound fair to you? It definitely doesn’t to us.
Bilecki & Tipon understand exactly what you’re up against. We’ve seen nearly
every dirty trick, every questionably legal strategy, and every “interpretation”
of the law that the government can throw at you. Without the best legal
defense team advocating for you, you’ll be just another statistic,
or just another win in a SVP’s portfolio.
That’s not what we want and it’s not what you want either.
What you want is to have a fighting chance against overwhelming odds.
And that’s what Bilecki & Tipon specializes in: beating the
odds. When you retain our law firm, we take the fight to the prosecution.
We’ve never backed down from a fight and we don’t plan to
Every day you wait is another day the prosecution has its way with the
evidence, the testimony, and soon enough, the trial’s outcome.
Contact our offices TODAY at
(800) 996-9747 to get a fair shot at your trial.