Would it surprise you to hear that many military defense lawyers don’t independently investigate their cases? Or that they don’t personally conduct in depth pre-trial witness interviews? Would it surprise you that after doing nothing more than reading the case file, many military defense lawyers will tell you to simply plead guilty?
If you knew the minds of the majority of defense teams, this wouldn’t be a surprise at all. Most see you as a lost cause. Most realize that they just don’t have the experience or knowledge to properly defend you. More importantly, they really know what you’re up against: a 90% military conviction rate.
The odds are rarely any better for service members facing a tough legal battle over a divorce or the custody of his children. No one will listen to him—not his wife, not his family, and often times, not even his own lawyer. It doesn’t matter that the particular service member defended his lawyer’s freedom for years. That’s not even taken into account by the lawyer, who often performs the bare minimum to defend his client’s freedom and rights in court.
A seasoned civilian defense lawyer knows what you’re up against, whether it’s here in Hawaii at state court or abroad during a court-martial. You don’t. Unless you retain a law firm that can bring in the big guns and fight back, you will be convicted or lose your case. Your reputation will be damaged, your freedom will be at risk, and if you’re facing sexual assault allegations, you will be registered a sex offender.
Pleading Guilty Isn't a Strategy. It's Surrender.
"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." –Joel Hirschhorn, legendary criminal trial lawyer and early mentor to Tim Bilecki
When Bilecki & Tipon is retained, we immediately initiate a fact-finding mission focused on understanding of your side of the story and all details relevant to your case. Our experienced investigators interview all witnesses, scour law enforcement files for “misplaced” or “inconvenient” evidence, and can uncover the truth by hiring our own expert DNA and forensic specialists. Furthermore, we can revisit each and every crime scene, collect additional evidence that may have been overlooked, and can even request to see the room in which our clients are interrogated.
It would amaze you to know how few attorneys actually insist on performing the above actions. Most will rely solely on evidence collected by CID, NCIS, or OSI. But a hard-hitting court martial lawyer simply cannot depend on law enforcement to properly document evidence, especially evidence that may undercut their theory of the case. If your assigned defense counsel has not conducted an independent defense investigation or documented crime scene evidence, critical evidence may be lost forever.
Some of our greatest victories and comeback stories have been due to exploring the scene of a crime after CID, NCIS, or OSI completed their investigations. Witnesses prepped by the prosecution are left baffled by new evidence brought to court by a scrupulous defense attorney. Armed with knowledge and evidence gained from a first-hand investigation, the defense can relentlessly cross-examine witnesses and law enforcement agents with confidence.
Pre-Trial Preparation: The Article 32 Preliminary 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...”
–Stated purpose of the Article 32 preliminary hearing
Everything we knew about the Article 32 hearing changed in 2015, 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.
The above is the best-case scenario, and should always be tempered by the wisdom of experience and a dose of reality. We’ve seen cases where novice defense attorneys attempt to “try the case” at an Article 32 Preliminary Hearing, thinking that a great show for the Preliminary Hearing Officer will prevent the progression to trial. This, however, can backfire in the defense’s face.
- Results could include:
- The Convening Authority deciding to go to trial anyway, allowing savvy prosecutors and Special Victim Prosecutors (SVPs) a chance to record all cross-examination questions posed by the defense to prep their witnesses for the trial. The result is often a conviction.
- A complete disclosure of the defense’s playbook. The prosecution can now “prosecute around the defense” or worse, develop a rebuttal case to present to the panel after the defense rests. This usually results in a conviction.
- Doing more harm than good. It’s not the Preliminary Hearing Officer that decides whether or not to refer a case to courts-martial. It’s the Courts-Martial Convening Authority. Attempting to impress the Preliminary Hearing Officer doesn’t by any means guarantee that the Commanding General or Office of the Staff Judge Advocate will buy into the defense’s story. It more often gives away the defense’s strategy, which 9 times out of 10 results in a conviction.
Without a proper initial, independent defense investigation to develop a trial strategy early on, a careless military lawyer can do significant damage at an Article 32 Preliminary 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 determined prosecutors and a system that’s increasingly designed to produce convictions.
Cross Examination and the Jury Trial: The Keys to Leveling the Playing Field
Mastering successful cross-examination techniques and properly utilizing those techniques in the heat of trial is the most vital task of a defense attorney. Experienced trial lawyers know the majority of a court-martial is often devoted to the prosecution's case. Inherent to a defense trial strategy then is dissecting, exposing, and crippling the government's key evidence and witnesses. Cross-examination is a key factor in this process.
At Bilecki & Tipon, experience tells us that pre-trial investigations alone aren’t enough to win a trial. Article 32 preliminary hearings, even when masterfully orchestrated, aren’t enough. Pre-trial motions or wordy "ivy league" legal arguments aren’t enough. Opening statements, which are skillfully utilized to give the jury a roadmap of the case and overcome confirmation bias, aren’t enough. Even soap-box-pounding, impassioned closing arguments aren’t enough to win your case.
But when a vigorous, heavy-hitting, experienced civilian defense attorney takes out a government witness with a blistering cross examination, it’s a game changer. A proper cross examination can expose a sloppy law enforcement investigation, reveal a coerced "confession," and betray the witness's self-serving lies.
Winning cross-examinations don’t happen by chance. They require meticulous preparation, a thorough pre-trial investigation, and military trial experience. That said, an attorney skilled in the art of cross-examination is absolutely worth their weight in gold. Without a fearless, thorough cross-examiner, a.k.a. a gunslinger, your conviction is all but inevitable. If you’re facing court martial charges, ask yourself if your free military lawyer is up to the task of taking on the witnesses against you and truly defending your freedom.
Overcoming the Credibitiliy Deficit
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 (the jury) 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.
From the very beginning—before opening arguments even—you’re deeply entrenched in a credibility deficit. And it’s up to your defense team to dig you out.
This pre-existing prejudice or guilty-until-proven-innocent mentality against the defense is a staple of all court cases. Only a true gunslinger can overcome the credibility deficit and gain the panel's trust and win the case. If an inexperienced defense attorney represents you, he or she may very well help secure your conviction. A panel must know you, like you and trust you in order to acquit you.
You’ve Been Prosecuted Unfairly. You Need the Best to Set the Record Straight.
We have a winning strategy that has proven successful time and time again. If you truly believe that you’re being prosecuted unfairly, and you’re passionate about fighting for your innocence, then take a stand. Find allies that understand the system and the stakes. Let the gunslingers at Bilecki & Tipon fight for you.
Call Bilecki & Tipon to help you level the playing field in your case TODAY.
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