When Bilecki & Tipon is retained, we immediately begin working to gain a complete understanding of your side of the story and facts relevant to your case. Our investigator, Mr. William Oettinger, becomes a key member of the defense team and begins his own independent investigation that includes scouring the law enforcement file, wargaming the case, interviewing possible witnesses, and conducting digital forensics if necessary.
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 stage and simply rely on the investigation provided by CID, OSI or NCIS. We find this incredibly odd and unfortunate because the defense investigation is a critical step in building a successful defense.
Many law firms and civilian military defense lawyers do not independently investigate cases, which is a critical error that jeopardizes winning cases. When we examine sworn statements taken by law enforcement, we routinely discover false, misleading, or totally fabricated “sworn statements.” Bilecki & Tipon utilizes personally conducted witness interviews and investigations to formulate a solid trial strategy from the case outset.
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 to have visited and documented the scene of the crime, to have visited sites where evidence was collected, or to have visited 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 a Soldier was involved in a brawl, or an NCIS interrogation room where a Marine allegedly “confessed” to a crime, when we go to a scene, we leave no stone unturned. A military defense lawyer simply cannot depend on law enforcement to properly collect and document evidence, especially evidence that may undercut the government 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 nearly two decades and is reflected in every aspect of his work and the work of the court-martial lawyers and staff at Bilecki & Tipon.
That “little inspiration” often comes while exploring the scene of the crime. Many of our best ideas for cross-examination come during this initial investigation, when our team documents 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
Everything we knew about the Article 32 hearing changed in 2009, 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 to testify.
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.
No General Court Martial can be referred to trial without going through the Article 32 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 it” Often, prosecutors (and sometimes defense attorneys) treat the Article 32 hearing as a mere “formality” or “speed bump” on the road to trial. At Bilecki & Tipon, 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 Preliminary Hearing Officer that sufficient evidence exists to proceed to trial. The Article 32 Preliminary Hearing Officer will listen to the evidence presented and make a recommendation as to whether the charges should go forward and if so, at what level (Summary Court-Martial, Special Court-Martial, General Court-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 (CA) decides if charges go forward, not the Preliminary Hearing 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 Preliminary Hearing 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 are not strategic in their approach to an Article 32 hearing, risk the following possible outcomes:
- Savvy prosecutors and Special Victim Prosecutors (SVPs) will 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 so, 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. Hard-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 Bilecki & Tipon, 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 soapbox pounding, the 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 motive to fabricate, and the witness’s self-serving lies. Cross-examination is an indispensable skill to the experienced court martial trial lawyer. Without a hard-hitting, thorough cross-examiner (i.e., a gunslinger), your conviction is all but inevitable. Most military lawyers are shamefully inept at the art of cross-examination, as 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 and imposing his or her will on the government’s witness through cross examination.
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 the 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 person 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 actually 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
The shocking reality is that many detailed military defense lawyers don’t independently investigate their cases, nor do they personally conduct in depth pre-trial witness interviews. Many simply read the file that the government gives them and make a decision – often times prior to even meeting you – that the best solution is to simply plead guilty. It’s no wonder why the military has a 90% plus conviction rate. The odds are rarely any better for service members facing Non-Judicial Punishment, Administrative Separation Boards or Boards of Inquiry.
A seasoned civilian defense lawyer knows what you’re up against, and knows how to turn the tables and win. Unless you retain a law firm that can bring in the big guns and fight back, you stand a great chance of being convicted and losing your case. Your reputation will be damaged, your freedom will be at risk, and if you’re facing sexual assault allegations, a conviction typically means that you will be a registered sex offender.
After two decades in the criminal defense realm, Bilecki & Tipon 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 defensive 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.
We have represented hundreds of clients, have significant criminal defense experience, and employ attorneys that have been heralded as the best cross-examiners in the business. Mr. Bilecki’s cross examinations were even featured in the National Association of Criminal Defense Attorneys (NACDL) 2017 book, Pattern Cross-Examinations For Sexual Assault Cases: A trial strategy and resource guide.
If you want to win, you must know how to properly prepare for a case, and execute that strategy in the most intense, pressure inducing circumstances.
How our Court Martial Attorneys Level the Playing Field
Military criminal trials are immensely complicated by a variety of factors. Having an inexperienced defense attorney who doesn’t have the experience or drive to navigate such a legal minefield can make your conviction all but certain. Bilecki & Tipon 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.
Contact Bilecki & Tipon to discuss all of your options, and level the playing field in your case. (808) 745-1041