In this Not Guilty verdict sexual assault case, Tim. Bilecki, a court martial defense attorney for UCMJ Article 120, exposed yet another false allegation of sexual assault followed by one of the sloppiest and most pre-conceived investigations seen in years.
A junior Marine was flirting with a married Staff Sergeant, and when the Staff Sergeant confronted her on the matter, she claimed that he sexually assaulted her. The alleged victim claimed that the Client came into her barracks room around 0600hrs and began to sexually assault her, while she was talking on the phone with her parents back in the States.
The claim, on its face, lacked credibility. The alleged victim also claimed that the Client sexually harassed and stalked her months prior to the alleged sexual assault. At trial, she testified that she gave the Staff Sergeant, “stalker status,” whatever that meant.
Mr. Bilecki tried the case and exposed an NCIS investigation that failed to administer even the most basic steps to uncover exculpatory evidence. At trial, Mr. Bilecki cross-examined the lead NCIS agent and revealed that law enforcement:
- did not begin its investigation until nearly five weeks after the allegation,
- made no attempt to recover any physical evidence from the crime scene,
- failed to collect the alleged victim’s clothing,
- did not collect DNA; and,
- made no effort to retrieve any phone records.
All of which would have been exculpatory
Law enforcement also interviewed the Marine Staff Sergeant, and during the interview, he pled with NCIS to review his cell phone. The phone contained numerous text messages from the “victim” to the SSgt, saying things like “Let’s fuck.” Instead of collecting the phone as evidence – which in this case would have proved that the “victim” had lied to law enforcement and made a false allegation – they photographed the Sergeant’s cell phone and then failed to place the photos into the case file.
NCIS decided early on that the Staff Sergeant was guilty, and it took no steps to find exculpatory evidence or even use such evidence after it was delivered to them. At the Article 32 hearing, Mr. Bilecki cross-examined the alleged victim about her relationship with our client. He managed to get her to admit that she sent the Staff Sergeant a text message saying “Let’s fuck” just prior to when she claimed that our client barged into her room and sexually assaulted her.
After Article 32, Mr. Bilecki demanded that her cell phone undergo forensic review by law enforcement so that the exculpatory text messages could be recovered. Conveniently, between the date of Article 32 and when the alleged victim’s phone was seized two weeks later, the pin connectors on her iPhone were broken.
The defense contended that the alleged victim intentionally broke her phone so that the messages could not be recovered. NCIS, unbelievably, did not send the phone to UCACIL, DCFL or any other lab to recover the data but rather looked at the phone, saw the pin connector was broken and did nothing. Mr. Bilecki exposed all of this during cross-examination.
Also interesting in the case was the voluminous amount of coaching of the alleged victim. During her testimony, she quickly answered every question from the prosecutor in a transparent demonstration of prosecution preparation and rehearsal.
However, during cross-examination, whenever Mr. Bilecki asked her a tough question, she would respond with, “I don’t remember” or “I don’t recall.” The defense counted at least 35 times when the alleged victim answered, “I don’t remember,” or “I don’t recall,” during cross-examination. Many of these memory lapse responses were to simple questions, the truth of which would have revealed the falsity of the allegations. After a weeklong trial, the panel acquitted the Marine Staff Sergeant of all sexual assault charges.
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