COURT MARTIAL DEFENSE
At Bilecki Law Group, We believe every service member has earned their right to an aggressive defense on their day in court. We specialize in taking the fight to the prosecution and winning cases that others said were unwinnable.
How To Take The Fight To The Military Justice System And Win
When you joined the military, you never thought you would be here. If you are a Marine, maybe it was the commercial where the Marine fought the fire dragon with a sword. If you are in the Navy, maybe you joined because you wanted to be a SEAL. Maybe you just joined after 9-11 to serve others do your part. What you didn’t join for was to find yourself facing a military court martial and yet, that may very well be the scenario before you right now. It’s scary as hell and rightfully so.
The military justice system is designed to obtain convictions for the sake of “good order and discipline.” It is not a system designed to discover truth. Overzealous prosecutors and investigators do not get command recognition for admitting when they were wrong, when they wasted thousands of dollars and hundreds of man-hours trying to validate a bogus theory or a false accusation. Even if you are so much as under investigation right now, the sum of the military justice system, with every asset at its disposal, exists for the purpose of convicting you. It sucks. It’s not right and it most certainly is not justice.
If that is what you are facing right now, your only reasonable option is to give the military justice system the very thing they don’t want. That is a fight. You fight like hell for yourself, your family, your career, your retirement, and maybe even your freedom…literally. Watch how quickly they’ll move on to the next guy when you present yourself as a hard target. Watch what happens to those who don’t fight. It’s not pretty.
What You Are Up Against In a Military Court Martial
The first step in the process of a military court martial is what is known as the preferral of charges. This is the functional equivalent of an indictment in the military, but here is an important factor to consider. By the time your charges are preferred, the military justice system has spent anywhere from three months to over a year building a case against you. That’s not to say that the case they built against you is solid; rather, that they are heavily invested in your conviction. They don’t admit wrongdoing willingly.
You’ll get called into your commander’s office, where they are going to read you your charge sheet. Then they will make you sign it without a hint that they are going all in on a sloppy and ill-conceived investigation. That’s because – at this point – backing down is not an option for them. Reputations are on the line. This is the first time you will know exactly what you have been charged with, and if you have not started preparing to fight back, you’re about 30 minutes late.
Prior to this stage, you are not afforded a free military attorney. However, it is important to note that you can bring in your own civilian attorney right from the moment you know you are being investigated. You should retain a court martial lawyer when being investigated because the military is going to have a year plus head start on proving your guilt otherwise. Oftentimes, we can stop you from ever being charged if we get involved early enough.
Now they’ll offer you a free military attorney who has never heard your name, while the prosecution has been thinking about you for a long time. By the time your free military lawyer does his or her first introduction, the Government attorneys will have already packaged up and put into binders your career history, the interviews with your friends, family, and coworkers, and every other piece of evidence they will use to convict you. By the time you meet your appointed lawyer, the prosecution’s trial binder will be well used and worn. We’ll say it again, you should have started fighting earlier, but if not then, now. Now is the time to get serious about the fight of your life. So, let’s run through the process of what you will face from here.
- Article 32 Hearing: This is the probable cause hearing, which is where a JAG preliminary hearing officer is appointed to take evidence and make a recommendation as to what type of court martial to pursue. It’s their responsibility to show probable cause that a crime took place. That’s a pretty low bar to establish, and many court martial defense attorneys - out of pure laziness - will tell you to waive the Article 32 hearing. That is a huge mistake that could cost you big time. We’ll cover that more when we talk tactics.
- Referral of Charges: This is where the case leaves your command and is sent over to a military judge who will then preside over the case. That referral comes from the Commanding General, Admiral, or whoever is the convening authority over the case. Here too is a missed opportunity that lazy defense attorneys or overworked, disinterested JAGs miss. There is an opportunity here to get the words that we want on paper right in front of the CG himself.
- Arraignment: This is an important milestone, because this is where the attorneys will make an initial appearance. If you have not retained a civilian attorney by now, you are missing an opportunity to shape the timing and schedule of the trial. If you let the military justice system dictate the pace, they are going to aim for a quick trial date that gives you less time to prepare.
- Litigating Motions: Here is where you’ll have witness production requests, expert production requests and any other motions that need to get litigated. Here is an important part you need to consider when working with JAG defense counsel. They can make life very difficult for the prosecution in this process. They know it, but they have to choose to do it. This again is one of those factors when your defense attorney is chasing a career within the same system that is dedicated to finding your guilt. What kind of JAG are you going to get? It’s a crapshoot and that’s the cold hard truth.
- Jury Selection and Trial: If the case doesn’t plead out prior to this point, then it is game on for a full trial by court martial. Unless there is a rare bench trial, the jury will be selected and the trial will commence. Remember just how many resources were expended by the military justice system to get to this point. They have spared no expense to obtain your conviction and they do not like to lose. If you have not stepped into that courtroom with the full confidence that you and your defense have done everything possible to prepare for this moment, the military justice system will roll over you like a tidal wave without so much as a hint that they noticed you were even there. And when it’s over, you will be another notch on an ambitious prosecutor’s belt.
- Conviction and Sentencing: Here is where it gets real, if it is not real enough for you already. Knees buckle and tears are shed when the military justice system brings down the hammer. The sentencing hearing takes place right after the trial and it is then immediately clear that the military justice system knew all along what they wanted to do with you - how they wanted to make an example out of you. You’ll find out the hard way, that it was never justice they were seeking, but order. They will have order in their domain and if they have to crush your soul to get there, they’re not going to shed any tears about it.
Not on our watch. Not if we have anything to say about it. Now, let’s get to the good stuff. Let’s talk about how to win.
Where To Stand and Where To Fight
You can look back at the various steps of the court martial and ask where it is that you make your stand and where you fight back. Our answer is every single step along the way. The game is far too rigged in the prosecution’s favor to give them a single inch. We fight them every step of the way. We’ll even fight during the investigation process to try and derail the case before it picks up steam…that’s if we’re with you from the start. However, if your command is dead set on making an example out of you and the preferral of charges is imminent, let’s talk about how we fight back.
Come To The Preferral Ready To Fight
As mentioned, when we get involved with a case during the investigation stage, we work hard to avoid charges to begin with. In some cases, we’re able to do this through back-channels or through the leverage of our own investigation. In other cases, where the Government’s priority is making you an example, there is no backing down – neither them nor us.
Remember, it’s only after the preferral that they’ll give you access to a free JAG defense attorney. That’s a military lawyer who likely didn’t know your name and may not have seen the charge sheet yet. Meanwhile, we may have spent the past year with you getting ready for this very day. The JAG defense is a rookie and we’re the seasoned vet.
Take the Fight To the Article 32
We’re going to spend a little time on this one, because it’s far too often another missed opportunity. As we mentioned earlier, many defense attorneys will just waive the Article 32 because they assume it’s a foregone conclusion that the case will proceed. Some attorneys will tell you that they don’t want the preliminary hearing officer to recommend additional charges, but that’s a bogus excuse. It can happen, but it is rare because the military justice system already had plans to charge you with everything they had to begin with. You risk so little but give up so much when waiving Article 32.
There are some rare cases where we too will waive it, but it’s rare and this is why. The prosecution must lay out their case. If you did nothing else but show up and listen, you are going to learn valuable information: the prosecution’s game plan. You’ve already gained an advantage.
Now, as the Bilecki Law Group, we like to get aggressive at the Article 32. We want this to be a clear indication that the military justice system has a fight on their hands. We’ll often call witnesses and go after low hanging fruit, i.e. the bogus or tack on charges. When they know they have a weak case, and we make it clear at the Article 32 that we intend to fight them every step of the way, they will sometimes just fold. That’s right, the preliminary hearing officer will not recommend the trial to go forward, all because you made it clear that you are not an easy target. They’ll move on to make an example out of the next guy.
Next, we have an opportunity to put forward what is called RCM 405k matters. Here, we can put anything we want in writing and it has to be sent to the CG. He is required to be briefed on it. If the case is a complete pile of garbage, we can tell him why and be as explicit as we want to be. Remember, up until this point, it has been the military justice system that has briefed the command, and they often portray a very slanted picture of the case.
We tell the CG the truth and because some CGs remember their time as an enlisted or as a junior officer, they’ll call bs on the case and not refer it for trial. The RCM 405k matters are also a chance to put your accuser on notice. Look, trouble often happens in groups in the military and there is typically one person left with all the blame while the accuser is looking to get out of harm’s way. It is rare that the accuser was sitting in his or her barracks room reading the bible with a cup of tea when you kicked down the door and said, “You looked so amazing on motor pool Monday, we are going to have sex right now!” It just doesn’t happen that way.
Sex assault case or not, often the accuser is right up in the mix of the trouble. Maybe you got caught because someone in supply ratted you out for taking some gear. Meanwhile, you know that S.O.B is running his own black market out the back door. This is your chance to say, “look, I’m putting all this in front of the CG,” because the accuser and the prosecution get a copy of the RCM 405k matters as well. Often enough, the accuser opts to get out of Dodge because the truth is going to come out. It’s telling the accuser something he or she was not told by the prosecution, i.e., “your reputation is on the line here too, and you’re living in a glass house.”
Set The Schedule At The Arraignment
If, after we have fought tooth and nail to avoid the charges being referred, it happens anyway. Then it’s likely the military was dead set on taking this to trial to begin with. Maybe the CG lacked the moral courage to make the right call or maybe they’ve got a manipulative staff judge advocate selling him or her a bill of goods. Your case now heads to a military judge and the schedule is set at the arraignment.
The military justice system wants to gain a tactical advantage by giving you as little time as possible to prepare. You likely already know this by now, because, though the military spent a year plus investigating you, they preferred your charges on Monday and asked for an Article 32 hearing on Friday. You can sense they fear time…because time can often reveal truth. Here, we’ll officially enter your plea and now, we get a say in the timing and pace of the trial. We deny the prosecution the tactical advantage of going to trial as quickly as possible.
Litigate Motions to Gain A Tactical Advantage
In this stage, experience matters. We can’t emphasize this enough. Let’s take calling witnesses and experts as an example. For the prosecution, they have an unlimited budget to bring in expert testimony and can call whoever they want as witnesses. As for the defense, we have to go like poor orphan Oliver asking for more porridge and beg someone for the ability to call a witness or bring in an expert. Guess who we have to ask? We have to ask the very people trying to prosecute you if we can bring in a witness that might help us defeat them. It is perhaps one of the biggest shams in the military justice system and further proof that the system is rigged against you. The prosecution often times denies every single witness we ask for as a matter of course. Then we must file a motion to the military judge to compel production of those witnesses.
Judges will routinely deny these requests all day long and when they do concede, they’ll give the defense only a small percentage of what we asked for. For example, if we found 10 witnesses who will testify that the alleged victim is a liar and lacks integrity, military judges often give us just one of those witnesses and say the rest are “cumulative.” To get that one witness, you have to disclose all the witnesses you want and tell the judge and prosecution what those witnesses plan to say. Basically, the government gets a free pass to hear what those witnesses or experts have to say, and if it’s too damning, they’ll just deny them. Of course, the Trial Defense Service or Defense Service Offices do not have their own budget to bring in witnesses in your defense.
However, experience matters, and experience wins the day. There are methods to obtain witness approvals and ways to keep your cards close to the vest without handing the prosecution your play book. We are convinced that a large percentage of military defense cases are lost right here in the litigation phase.
Right here because an inexperienced lawyer or a free JAG attorney doesn’t know how to get witnesses or expertise into the courtroom. They may also not want to upset the chief of justice or staff judge advocate, who might be their boss one day. If this happens, your case is done before the first day of trial. It is like the enemy in Iraq or Afghanistan getting to decide the ROE, then inviting you out to a firefight, where you are not allowed to shoot back. Absolute insanity, but there is a way to win at the litigation phase. You just have to have someone who knows how and is able to draft and implement their own ROE. You need a defense attorney not gunning for the next promotion in the same military justice system they are supposed to be protecting you from.
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An Aggressive Offense Is The Best Defense At Trial
By the time Bilecki has fought through the battles of the investigation, Article 32, trial scheduling a motions hearing, we arrive at the date of the trial ready to win this once and for all. We can take in personal, and we aren’t happy that you had to go through an entire legal process that has been designed from its core to prove you guilty. Trial is the great equalizer. We come into court with a defense so aggressive, it is basically an offense. But even at trial, the deck is still stacked against you.
Consider that your average jury in a court martial will consist of 8 individuals, at least 1/3rd of whom you can request to be enlisted if you are also enlisted. However, unlike every other judicial system in the country, they don’t need a unanimous verdict to find you guilty of a crime. If six jurors find you guilty and then 2 say you are innocent, you are guilty. It’s extraordinary, that you can have two people on your jury who vote not guilty, and you will still be found guilty. They don’t need a unanimous verdict to ruin your life. That’s why we fight like hell and take no prisoners. Just look at our court martial case record, you can see that these cases can be won.
We absolutely destroy the government’s witnesses during cross examination. In fact, in many of the cases we try, we don’t have to call witnesses ourselves. We just decimate whatever and whoever the government puts on the stand in front of us. Because the military justice system is so used to free JAGs or inexperienced defense lawyers rolling over for them, they are shocked when they get a punch in the mouth. We are an agent of chaos in what would otherwise be a well-orchestrated system, designed to efficiently convict you.
Fighting Until the Bitter End Of Sentencing
To say that we are not emotionally invested in our clients would be a lie. Much like combat, you do not endure this much battle and embrace this much suck without forging a bond. Make no mistake about it, we are with you until the bitter end. Fortunately, that end is often sweet when you fight like hell. The words “Not Guilty” read aloud brings joy to our soul. The moments before are nerve racking, and the day we don’t get nervous before a verdict is the day we close up shop.
However, you have to know that the military justice system likes to find victory, even in defeat. So you could be declared not guilty of rape, but they’ll come after you and find you guilty of a curfew violation. The sentencing hearing happens right after the trial, so we have to be prepared for this beforehand. We’ll have character witnesses to call and highlight the sum of your military service. Listen, if you dragged two buddies out of an insurgent infested building on the streets of Fallujah, we’re going to make sure the world knows that before they sentence you for some tack on charge. There is a strategy to winning at sentencing too.
We’re Not Here to Coexist. We’re Here To Win.
If you are cleared of all charges (and this happens often) you go back to work. You go back to picking the kids up from practice. You get a good night’s sleep for the first time in a long time. The experience will be surreal, but you will get your life back. That’s our goal for you, and we’ll always shoot you straight. If there is an off ramp and you can take a curfew violation to avoid a sexual assault charge prior to trial, we will try to get you there. But make no mistake about it, if it is a trial the military justice system wants, they’ll likely get it.
We embody the saying, “be careful what you wish for…” Bilecki Law Group also has its own saying: “We apologize for what happens next.” The only way to fully grasp the meaning of our saying is by sitting next to us in a courtroom as the prosecution watches our game plan unfold in front of them at trial…after they’ve rested their case against you, after they’ve staked their names on convicting you, and it’s too late.
Your free lawyer will waive the probable cause hearing. He or she will then advise you to take the first plea deal offered before seeing all the evidence, losing any leverage you might have had. Your JAG lawyer will tell you that your case is “un-winnable.” That lawyer makes a living cutting deals, and he or she gets promoted for efficiency – the ability to get along with other JAGs, to “play ball.”
In a sense, where the various cogs in the military justice system have staked their reputations on convicting you, our reputation is staked to yours. We have a reputation too. We’ve made a name off the military justice system, winning the “un-winnable cases.” So make no mistake about it, if it is the fiery forge of combat in trial that the military justice system wants, we’re going to make them regret the day they came looking for you. If you are up against the military justice system industrial complex and you have a little fight in you, reach out to us and we’ll fight with you. And we will fight to win!