What You're Up Against
In an ideal world, the justice system would be fair, unbiased, and designed to ferret out the truth. In the court-martial arena, that is not the case. In order for the military to keep its conviction rate high, ensure good order and discipline, and create the public perception that misconduct is not tolerated, it stacks the deck against an accused and oftentimes attempts to win at all costs. If the military cared about ensuring that justice was done and that a service member gets a fair trial, both the government and the defense would be given equal resources regarding investigators, evidence, experts, witnesses and, perhaps most importantly, equally-experienced attorneys. This isn’t the case. Far from it.
In today’s military justice system, those who are criminally accused are at a shocking disadvantage when fighting against the power of the prosecution, the command, and the United States Government as a whole. The command, law enforcement, Staff Judge Advocate’s Office, and the prosecution are all on the same team. And they have only one goal, winning their case against the accused. This is done in the same way any great military wins a war, by overwhelming their enemy, dominating the battle space, and creating an unfair advantage.
How the Government overwhelms their enemy (the accused):
The examples listed below are just a few of the tactics, techniques, and procedures that the military uses on a daily basis to obtain convictions at all costs.
- Special Victim Prosecutors (SVPs): The military hand selects its most experienced, aggressive, and hard-nosed trial attorneys to serve as SVPs. Their sole mission is to oversee the investigations and prosecutions of sexual assault and domestic violence cases and to get convictions. These SVPs are the military’s elite trial attorneys, have years of experience trying sexual assault and domestic violence cases, and are given specialized training in sexual assault and domestic violence prosecutions.
In a fair system, the accused would be detailed military defense counsel with the same level of training, experience, and resources so that the playing field is even. This isn’t the case. In many cases, the accused is detailed a military attorney with little to no experience trying sexual assault or other serious cases, and who oftentimes has never tried a contested court-martial to verdict. This is not by chance, but rather by design. The military conviction rate hovers over 90% and the military continues to do whatever possible to keep it that way.
- Defense Outnumbered at least 5 to 1: In certain cases, the military will assign not one, but two SVPs to try a sexual assault case. Even in cases where two SVPs are not detailed to try the case, they will almost always be assisted by at least one – and often two – experienced prosecutors to form a prosecution team. In cases that do not involve sexual assault, the prosecution will typically assign an experienced Senior Trial Counsel to lead the prosecution team.
Beyond the prosecutors who sit at counsel table at trial, the government typically has a literal army of support staff for their prosecution teams with the same mission—ensuring a conviction. These support teams include civilian support attorneys known as “Highly Qualified Experts” (HQE’s), a senior prosecutor (O-4), a deputy Staff Judge Advocate (O-5), a Staff Judge Advocate (O-6), and a team of enlisted paralegal support.
In addition to the support staff, the prosecution team has the unlimited resources of law enforcement to document the crime scene, collect evidence, interview witnesses, and build the prosecution’s case. The same cannot be said for the defense side of the house.
A military accused is typically detailed only one military defense attorney with little to no support staff. At best, a military defense office will often have one enlisted “paralegal,” usually a junior enlisted, who supports four to six defense attorneys. This enlisted paralegal is often undertrained, overworked, and lacks the time, resources, or knowledge to conduct basic investigations and witness interviews. Detailed defense attorney’s rarely have an investigator that can assist the attorney with investigating and preparing the case for trial, whereas the government often has one or more. If you think this seems unfair, you are not alone. But that’s the way it is—the system is designed to give the prosecution a clear strategic and tactical advantage.
- Unlimited Prosecution Budget: Anyone who says money can’t buy justice has never been criminally accused. Investigations are expensive, expert consultants are expensive, and trials themselves are expensive. For the prosecution team, however, money is no object. The government has a seemingly endless well of resources and money to investigate and prosecute a case. They typically utilize over a half dozen investigators in any given case, fly them anywhere in the world to conduct crime scene investigations and witness interviews, and later fly the law enforcement agents to trial to testify against the accused—no questions asked. On the other hand, the defense has to fight tooth and nail to get witnesses produced at trial.
If the case involves complex forensic evidence such as DNA, serology, or computer forensics, the government has the ability to consult with and pay for, the best experts in the country. If the case goes to trial, they have the resources to fly them anywhere in the world to testify. If witnesses that are helpful to the government’s case are located in far-flung corners of the world, they have the resources and ability to fund their travel for trial.
If the military justice system was designed with fairness in mind, these same resources would be available to the military defense attorneys. Without question, they are not. Military defense counsel has neither the ability nor the budget to compete with the prosecution. While the government has carte blanche ability to utilize as many trained investigators as they need to investigate a case, detailed military defense typically has none. While the government can retain America’s premier experts and consultants, the defense literally has to specifically request experts and consultants from the government, which are routinely denied.
That’s right, not only is the government prosecuting an accused, it is also in charge of what witnesses the defense will be provided. While the government can fly any witnesses to trial that it desires, the defense has to issue a formal request to the government to provide defense witnesses, which are routinely denied requiring the defense to file a motion asking the military judge to compel the witness. That is what a military accused is up against.
- Unethical Criminal Investigators: The agents in the military’s criminal investigative division, including CID, NCIS, and OSI, can be some of the most corrupt and unethical in the business. Overwhelmingly, these agents are neither interested in doing a full and complete investigation nor getting to the truth.
While this may seem counter-intuitive, in the military, law enforcement agents are not always trying to find the truth, they are not trying to prove your innocence, and they are certainly not on your side. Today, more than ever, military law enforcement agents only care about finding the evidence that makes you look guilty, which helps the prosecutor get a conviction and ultimately closes the case. This is especially true if you are accused or suspected of sexual assault.
Countless cases exist where innocent service members have been in a CID interrogation and provided law enforcement with exculpatory evidence or even alibis that the agents refuse to even document or investigate. The agents often then call the service member a liar and keep them in the interrogation room for hours until they get an admission or a confession – even to crimes they simply did not commit.
At trial, these agents routinely take the witness stand, take an oath, to tell the truth, and then look the jury in the eye and blatantly lie. Even worse, many of these agents have been well-coached on their “testimony” prior to trial by a prosecution team that wants to win at all costs.
- Government Turns a Blind Eye to Evidence of Innocence: Military personnel would all like to believe that prosecutors and law enforcement agents want to discover the truth about what happened in a particular case, that they will interview all relevant witnesses, collect and test all of the forensic evidence, and be as skeptical of the accuser as they are of the accused. Unfortunately, that is just not reality.
In case after case after case, many military CID and NCIS agents, as well as prosecutors, don’t care about the truth or what really happened, they care about getting convictions and winning at all costs. Once an allegation is made against a service member, particularly in a sexual assault case, law enforcement agents put all eyes on the accused—none on the accuser—and investigate the case with the predetermined notion that the accused is already guilty.
The end result is typically a sloppy investigation where exculpatory evidence is lost, helpful witnesses are never interviewed, and the credibility of the alleged victim’s story is never challenged. Military cases are replete with investigations where forensic evidence that could exonerate the accused is not tested, where prosecutors inform alleged victims ahead of time that their cell phones will be collected (giving them time to delete messages they don’t want the defense to have), where evidence is withheld from the defense, where obvious inconsistencies in an alleged victim’s story are never shored up, where the accused has given CID and NCIS agents the names of eye witnesses whose testimony would show his or her innocence and the names are completely discarded, where the accused rights are routinely and intentionally violated, and on and on and on.
The government cares more about a conviction and, in sexual assault cases, winning the war against sexual assault, than they do about properly investigating a case and ensuring that an innocent service member does not go to prison. It truly is a sad state of affairs when a bullet point on a NCOER, OER or Fitrep matters more than justice or someone’s freedom. It is terrifying to be accused of a crime in the military because you will not get a thorough and impartial investigation. Being innocent is no longer enough.
- Denial of Defense Experts: Many serious courts-martial cases involve complex forensic evidence such as DNA, serology, metadata, sexual assault forensic examinations, and forensic psychiatry. In these cases, the government has the resources of its law enforcement team, the United States Army Criminal Investigative Lab (USACIL), the Defense Computer Forensics Lab (DCFL), the toxicology labs at Tripler Army Medical Center and Brook Army Medical Center, and some of the best medical and mental health providers at Walter Reed and other premier military treatment centers.
If the military does not have the expertise needed in-house, the government routinely hires the best experts they can find in a given field and then pays them exorbitant amounts of money. The military defense team, on the other hand, simply does not have access to these resources. Under the UCMJ, if the defense requires government funding for an expert consultant or witness, it must make a detailed request for the specific expert to the Convening Authority—the same person that decided to send an accused to a court-martial.
This detailed request will necessarily require the defense to provide its case theory and articulate with specificity why the expert is needed. This process, in and of itself, requires the defense to “show its hand” and gives the prosecution a massive tactical advantage. The government, however, is not required to approve the request and routinely denies the defense requests for expert consultants and witnesses.
Even in cases where the trial will turn on the interpretation of complex DNA evidence, and where the government is utilizing a DNA expert as a both a consultant and expert witness, they will flat out deny the defense request for a DNA expert. In cases like this, it can be pure gamesmanship on the part of the government.
If the government denies the defense request for an expert consultant and witness, the defense must then file a motion with the court, again showing its hand and losing more tactical advantage.
At these motions hearings, the defense is often required to call the requested defense expert as a witness and disclose exactly what they would be testifying to at trial. This, again, gives the government a huge advantage as they will have heard the proposed testimony of the defense expert, and if granted, will be in a significantly better position to cross-examine him or her.
Filing the motion to compel the expert, however, is not always successful. Military judges routinely deny defense requests for expert witnesses under the theory that that defense could simply utilize the government’s expert. Even a person that has no understanding of the law or the military, can recognize that this is a system designed to favor the government and put the accused at a significant disadvantage.
- “Bought” Testimony: Military prosecutors have the ability to grant offers of leniency, immunity, or other deals to witnesses in exchange for desired testimony. This often occurs in cases where the alleged victim has also committed misconduct and is scared of being prosecuted for his or her misdeeds. The government can essentially wipe away all of their misconduct, give them a clean slate, and a get out of jail free card in exchange for the testimony they need in the case.
This scenario also often occurs in snitch cases, where the government will agree not to prosecute a known criminal, or to cut time off their sentence, in exchange for their favorable testimony. In the business, this is known as “buying testimony.” The defense has no ability to use these types of tactics. In fact, if a defense attorney bought, coerced, threatened, or traded favors with a witness for telling a certain story, they could likely be disbarred and criminally prosecuted. Prosecutors, on the other hand, “buy” testimony regularly, but instead of money, the testimony is purchased with the coin of freedom or leniency.
- Detailed Military Defense Attorneys Are Not Provided To An Accused Until After Charges are Preferred: Even though the government has a team of people working to build a criminal case against an accused from day one, most services have a policy that service members who are under investigation are not detailed a military lawyer until after charges have been preferred against them. This puts the service member at a monumental disadvantage when defending their case.
If the system was designed to be fair and just, the military would ensure that a service member who is under investigation has a defense attorney, from the beginning, who is representing his or her interests by ensuring that all exculpatory evidence is obtained and that law enforcement is acting honestly. Because that is not the case, by the time an accused has charges preferred against them, he or she is likely already behind the proverbial eight-ball; a “confession” may have been taken, exculpatory evidence lost, witnesses gone, and the command too personally invested in the case to drop it.
- Denial of Requested Delays: Oftentimes, the military will spend months investigating a case, prefer charges against an accused, and then the prosecutor will set the Article 32 hearing date for only three to five days after the preferral of charges. When the defense then requests a delay, the government opposes it and the Convening Authority (CA) denies it. This denial of requested delays also happens throughout the court-martial process.
While the government has had months, and sometimes years, to investigate and prepare their case, the military lawyer is expected to be ready to fight at the Article 32 or trial in a matter of days or a timeframe that gives the government a decided advantage.
- Military Defense Lawyers – Part of the JAG Family: Although detailed military lawyers are part of a separate organization from the command or the Staff Judge Advocate’s Office, they are still “part of the JAG family,” and often move from defense jobs directly into positions as military prosecutors. In some cases, especially high profile ones, there can be extreme pressure on military defense lawyers not to “burn bridges” (if they want to get promoted) or use a “scorched earth” approach, even though such an approach may be helpful in getting an acquittal.
Even worse, there has been a growing trend in the Army to intentionally assign inexperienced defense attorneys, some of whom have never tried a case in their lives, to the Senior Defense Counsel positions where they lead, supervise, and mentor the junior defense attorneys in the region. A cynical person would say this is intentionally done so that the government prosecution and law enforcement team will be able to dominate the defense and increase their conviction percentage.
- Track Records of Detailed Military Attorneys are Dismal: What is the guilty plea to acquittal ratio of your military attorney? If any attorney hesitates to answer or tap dances, beware. It should be a red flag signal to look elsewhere for representation. The current overall military conviction rate is over 90%, but you do not need to be part of that statistic.
Understanding the Potential Consequences
Bilecki Law Group, PLLC has the experience, skills, and backbone necessary to fight a system that is designed to convict service members of crimes, place them in prison, and kick them out of the military with a dismissal, dishonorable discharge, or bad conduct discharge. Decisions to roll over and take the first guilty plea offered, or being convicted at trial, can have devastating consequences. If the cost of retaining the best civilian military defense lawyer seems high, consider the lifelong costs of a conviction.
- Prison: Conviction usually means loss of freedom via incarceration. Even worse, families are torn apart and children grow up without a parent. Imprisonment takes a heavy toll on an individual’s social, mental, and emotional well-being. When released, convicted felons are typically broke and largely unemployable.
- Loss of Pay and Allowances: To assess the real financial cost of a conviction, multiply a month’s pay by the number of months of the sentence to confinement. An E-6 sentenced to 24 months confinement loses over $100,000 in pay. Factor in the loss of medical benefits and potential retirement income, as well as the expected number of months before reemployment (probably in a low-paying job), and the numbers become even higher.
Compare that against the cost of using a hard-hitting court-martial defense lawyer, and it becomes clear that you cannot afford not to get the most experienced military criminal defense attorney available.
- Possible Loss of Retirement: A retirement-eligible NCO, Chief or Officer may lose the military retirement income that they had long planned on obtaining. The approximate value of lost retirement benefits will likely be millions of dollars.
- Punitive Discharge: The likelihood of securing a job after prison is dismal. A punitive discharge remains on permanent records forever and shows up in most background checks administered by potential employers. And if you were hoping to go into law enforcement after your military career ended, a punitive discharge makes such employment next to impossible.
- Loss of TRICARE Benefits, Including for the Family: The cost of basic civilian medical insurance for a family can cost a minimum of $10,000 per year. Premiums, plus other costs, may add up to hundreds of thousands of dollars over a lifetime. A service member convicted at a court-martial typically looses all TRICARE benefits.
- Possible Repayment of Enlistment Bonus: If you received an enlistment bonus, and did not fulfill your enlistment contract, it is possible that the military may attempt to make you pay back the unearned portion of your bonus after you get out of prison.
- Repayment of Military Education: If you utilized any type of military educational benefits, it is possible that the military may attempt to make you pay back the cost of the educational benefits.
- Loss of Military Childcare, Military Housing and Other Military Benefits: If you currently utilize military childcare, or live in on-base housing, a conviction and jail time may mean that your family gets kicked out of housing and could essentially be homeless.
- Registered as Sex Offender: If a case involves a sexual crime, you will likely be registered as a sex offender. Potential employers must be informed, and case information is made public to neighbors and local police departments of all future residences – often for life. The stigma of being a registered sex offender will likely cause a social death that is more painful than a physical one.
- Sex Offenders become Social Outcasts: Housing for a registered sexual offender can be severely restricted. Many states do not allow sex offenders to live near schools or daycare centers or be around children. Name, address, and photo of convicted sex offenders are often published on sex offender websites.
Shunning by former friends and often even some family members are common. This is the harsh reality for those convicted of sex crimes, even in “he-said-she-said” cases where both parties drank alcohol, had sex, and later, for any number of reasons, the female makes false accusations of sexual abuse.
Leveling and Dominating the Playing Field
While the military does everything possible to stack the deck against the accused, increase their conviction rates, and win at all costs, they do none of those things for you.
Contact the team at Bilecki Law Group, PLLC and get the full force of a court-martial defense firm behind you. One that can investigate the case prior to preferral of charges, that has the connections and ability to consult with and retain the world’s premiere defense experts, that can expose the government’s lies through the crucible of cross-examination, and that can leverage superior litigation resources, but this time on your side.