The Fire and Maneuver Strategy of Military Court-Martial Motions

The stated purpose of the Marine infantry squad is to “close with and destroy the enemy by fire and maneuver.” Marines are taught this philosophy in boot camp and judging by their actions in combat it seems to us that they really mean it. It is an aggressive stance that always holds the Marine responsible for taking one action or the other and both must happen simultaneously within the squad. Firing without maneuver is a waste of ammunition and moving without fire is suicide. So it is with military court martial motions. Filing motions just for the hell of it without a strategy to close with and destroy the prosecution’s case is a waste of paperwork. Trying to defend a serious case without examining the motions available to you leaves weapons unused. Motions are a weapon in the defense attorney’s arsenal and when wielded with skill can save a service member’s life from the abyss of the military justice system. Let us explain further.

What We Do With Motions

Motions shape the battlefield. They can determine what evidence comes in, what stays out, which witnesses appear, and whether a charge can proceed. We examine those issues while building the defense, not after the government has finished setting the terms of the fight.

As it stands, the team here at Bilecki is extremely aggressive with motions right out of the gate when the facts and law support them. We want to let the prosecution know they have a fight on their hands. That means investigating the issue, obtaining the records, preparing witnesses when needed, and making an argument the judge can act on. Every motion must earn its place in that fight.

Why Hire Bilecki Law Group?

As with combat, training and experience matter as to how well these motions are wielded. Namesake and founder Tim Bilecki spent years inside the military justice system as a senior defense counsel for the Army. With over 20 years across the military and civilian sides of military court martial defense, it’s not hubris to say that we are special operators when it comes to military court martial motions. Motions require someone who can research, write, and then stand up in court and argue the issue.

A well-written brief is only part of the job. Your lawyer also needs to understand the evidence, question witnesses, respond when the hearing takes an unexpected turn, and preserve the issue for later review. We prepare for all of it.

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Understanding the Components of Military Court-Martial Motions

A motion is a formal request made to the court asking for a specific ruling or order. These applications can be made either in writing or orally, depending on the situation, and cover a wide range of legal issues from evidentiary challenges to dismissals based on procedural errors. Your basic motion is going to hold the following components.

1. 1Statement of Relief Sought: Clearly specify the legal remedy you are requesting.
2. 2Hearing Requests: Indicate if you wish to have an oral argument, present evidence, or both.
3. 3Burdens of Proof and Persuasion: Identify which party carries the burden and what must be proven.
4. 4Factual and Legal Grounds: Provide a concise description of the facts and the legal arguments supporting the motion.
5. 5Evidence and Witnesses: List the evidence and name witnesses you intend to present, specifying those you expect the opposition to produce.
6. 6Legal Citations: Include relevant legal authorities that support your motion and acknowledge any contrary legal authority.
7. 7Conclusion and Draft Order: Restate your request for relief and propose an order for the judge’s signature if applicable.

A well crafted motion is like a well formed rifle squad. One component could be considered the rifleman, another the SAW gunner, one carries the AT-4 and another M203. Together they form a powerful punch that allows you to both fire and maneuver on the prosecution’s case. When and where to deploy these motions becomes the commander’s discretion, but the purpose is always clear. Close with and destroy the prosecution’s case.

Witnesses and Experts

If the defense needs a witness, we use the production rules to explain why the testimony matters and why production is required. If we need an expert witness or consultant, we identify the work and establish the applicable basis for assistance. When a request is disputed, we may ask the military judge to resolve it. A request is not a guarantee of approval; the preparation supporting it matters.

Timing the Motion

Some issues must be raised before pleas. Others arise as discovery develops, during trial, or after findings. A speedy-trial issue, an unlawful search, a defective charge, and newly discovered evidence each raise different questions about timing and relief.

We work from the applicable rule and the judge’s scheduling orders. Waiting too long can forfeit or waive an issue. Motions practice is not limited to the period after arraignment, and a post-trial motion is not a universal way to repair something that should have been raised earlier.

At an Article 39(a) session, the judge can hear and decide issues outside the members’ presence. The judge may grant a motion, deny it, or grant only part of the relief. A ruling may be announced orally or issued in writing; the required findings and conclusions must be made part of the record when factual issues are involved.

Selecting the Right Motion for the Right Target

As for selecting the right motion, it really depends on what aspect of the prosecution’s case that you are seeking to destroy. For some targets you can send in a Marine rifleman to politely knock on the door with his boot and make an entrance. For other targets, you send in a Marine with a rocket to say, “I said open the fuck up.” There is a range of options and below you see just a few of the tools in our arsenal.

Suppression and Defective Charges

A suppression motion challenges whether evidence obtained through a search or interrogation may be used. We examine the authorization, the actual search, rights warnings, and how a statement was obtained. An error does not automatically suppress evidence, but a real violation cannot be ignored.

A motion for failure to state an offense challenges the legal sufficiency of a charge. The government must allege an offense recognized by law. That is different from deciding whether its witnesses will ultimately prove the allegation.

M.R.E. 412 and Sexual-Offense Cases

Military Rule of Evidence 412 generally restricts evidence offered to show an alleged victim’s other sexual behavior or sexual predisposition. It has specific exceptions, including qualifying evidence involving someone other than the accused as the source of physical evidence, certain sexual behavior with the accused offered to prove consent, and evidence whose exclusion would violate the accused’s constitutional rights.

Not every previous interaction, message, or allegation is automatically excluded. We identify what the evidence actually proves and which rule applies. When Rule 412 applies, its motion, notice, hearing, and privacy requirements must be followed. Knowing a fact and being allowed to present it are two different things.

Challenges to Verdict Rules

The ordinary noncapital court-martial rule permits conviction by at least three-fourths of the members. In United States v. Anderson, the Court of Appeals for the Armed Forces rejected a general constitutional right to a unanimous court-martial verdict. Civilian jury decisions do not automatically change that rule. A supported challenge must address the law that actually governs the case.

Offense Dates and Consequences

Older allegations require careful examination of the statute of limitations and the law in effect at the relevant time. Some offenses have no limitations period. Other cases depend on statutory changes and the precise chronology.

Registration consequences also require careful advice. They can matter enormously to a client’s decisions, but they are not automatically admissible as sentencing mitigation. We examine how the consequence may lawfully be addressed in the particular proceeding.

Fight the Charge the Government Actually Has to Prove

You have to fight back and this is true even if you did mess up and make a mistake. You don’t have to sit back and take the worst that they can throw upon you. Admitting one kind of misconduct does not mean accepting a different charge the evidence does not establish. A prohibited relationship, for example, does not by itself prove sexual assault. We separate the allegations, test the evidence, and challenge each charge on its own requirements.

Get Us Into That Fight

You have to fight back and you need an attorney who knows how to wield motions with skill and ability. You cannot leave a supported issue on the table and simply hope for mercy. Strong preparation can also affect negotiations, although it does not guarantee a favorable agreement.

If you are facing an investigation or court-martial right now, reach out to us. We’ll shoot you straight on exactly what you are facing and as long as you are willing to fight back, so are we. Fight like hell and get us into that fight.

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Related video: Motions and Litigation on Off the Record. The written explanation updates the procedure discussed in the recording and is not a verbatim transcript.