December 14, 2019
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“This is Tim Bilecki from Honolulu, Hawaii,
bringing you a special edition of the military law news network. In this special edition
we’re going to talk about a few topics that are coming up very recently. The real question
is: are you guilty until proven innocent? And we’re here with Michael Waddington of
Gonzales and Waddington, good morning Michael.” — Tim
“Good morning Tim, glad to be here. The main thing that we are seeing right now Tim is
it’s like a national rally to really take the court martial process. It started out
at low levels, at bases and coasts and installations with SARCs and other people that are trying
to get our there and reach out and touch juries and panels in these sex assault cases. It
then went up to higher levels, you know, some senior officers and really all branches of
the military, it’s gone as high this week as up to the president and the secretary of
defence, where they’re now publicly talking about how they’re going to stop and crush
sexual assault and sex assault cases. And Tim you’re familiar with the current investigation
going on right now with a marine judge that was trying to increase the conviction rate.
Do you want to talk a little bit about that?” — Mike
“I did Mike and I have always had the opinion that for the most part with rare exception,
military judges have been isolated in terms of trying to make the right ruling based on
the law. There’s a lot of ruling that I get that I don’t like, but they’re right rulings.
Some I don’t like. But what I’m seeing now is some activist judges on the military bench.
And I was really shocked when I saw this, although nothing in this war on sexual assault
shocks me anymore, but there’s a military Marine Corps judge who is under investigation.
Before the trial even started, our understanding from going through the investigation, is that
he went up to the prosecutor in front of the defence attorneys and essentially said if
this scumbag, the scumbag being the marine who’s innocent until proven guilty, walks
on this or gets acquitted, you’re going to hell. That’s what the judge said. If your
incompetence gets him acquitted, you’re going to hell. This is from a senior judge to a
junior prosecutor. Its straight intimidation and you know he’s not getting a fair trial,
how is this marine getting a fair trial. And more to the point even, if you’re his defence
attorney and you’re a young captain trying to make rank what do Mike? You know it is
a huge problem. This marine judge is under investigation, how are you getting a fair
shot in the military if the judges are calling you a scum bag and a dirt bag and saying if
you walk you’re going to hell to the prosecutor before the trial even starts. It’s ridiculous.”
— Tim “And Tim, I agree with you that in my experience,
once we get to trial, military judges are fair, they’re neutral, they go to great lengths
to not pass judgment, in my experience. That’s why we take most of our cases to trial. And
then beyond that, in my experience and military juries are as fair as you’re going to get
and they’re the great equalizer in this system. But when I hear of these cases, and this is
not just a random allegation, this is a case that’s now being investigated by one of the
military appellant courts because apparently this was an on going problem with this particular
judge. Now I didn’t hear any of that but there are affidavits and testimony and statements
put forth by lawyers that are involved in these cases that co-operate these allegations
and I believe there’s going to be a hearing underway very shortly here. And those types
of comments where you’re pre judging someone that is assumed to be innocent, there’s no
way that that could not affect the outcome of a court martial. And there’s no reason
for a judge getting involved, he’s a judge he’s supposed to be fair.” — Mike
“As we said, in this one sexual assault the last, the great equalizer. When you take the
commanders, the JAGs, the SARCs, the lying witnesses, the great equalizer is the justice
system where attorneys like us can go into a courtroom, get what we, a fair and impartial
jury and as much as they like to stack the deck, I like you Mike, have found that juries
do the right thing, you get judges who make the right ruling and the tough calls. And
for the vast majority make the right calls; even the ones I don’t like are usually the
right calls. But now if we get to a point where military judges are tainting the system
and this is isolated, but it begs the question how many other times has this gone on? It
has a chilling effect on the entire system. You have to ask the question, am I going to
get a fair trial? And even with the guys like you and I and other attorneys who like to
fight, if they’re not involved is the JAG or the military attorney going to be second
guessing his decision to go to trial because he has a filed grade officer saying hey if
you win this you’re a scum bag too. You think you’re going to get promoted? And that’s the
real issue for me, what chilling effect does it have when you don’t have independent folks
like us who go in and try the case? I mean it’s a real problem and I’m glad the appellant
courts are looking at it, I’m glad it’s brought out to public attention, because this has
got to be stopped. I mean, the congress can do what they want but when it is time to go
into a courtroom we can’t have that come inside the four walls of a courtroom Mike. It has
to be stopped.” — Tim “Tim, it has to be stopped. I don’t think
that this is a widespread problem.” — Mike “And I agree Mike, I don’t think that it is
either, but” — Tim “In my cases the judge generally tries to
avoid even speaking with either side in any matter before the case and after the case,
but the thing is I think it’s good that if there is even one person out there that’s
doing this that someone had the courage to bring it to the appellant court’s attention.
And the appellant court stepped in to do the right thing.” — Mike
“And also, this got me thinking though Mike. And we know this to be true we’re both former
JAGs so if it’s not the judges doing this, because I do believe this is isolated, how
about the staff judge advocates out there in their group meetings and at their officer
calls and so on? Because you know as well as I do that this goes on in meeting, officer
calls at the O club at the golf course where majors, whether it’s the chief of justice,
deputy SJs, they talk to TDS or the DCOs or the military attorneys and they’ll talk about
a specific case and say hey you’re a scum bag if your guy walks, he beats the [?]. There
may be repercussions because I have always talked about how small the JAG corps is. And
if there is even one isolated incident from the bench we know this goes on within the
JAG corps and the staff judge advocates’ office all the time. We know that Mike.” — Tim
“Tim, that’s a different story. Now the staff judge advocate is, again just like the judges,
they’re supposed to be fair, neutral and detached advising the convening authority. They’re
not supposed to play a part in the case. But I’ll tell you it’s in my experience that the
SJ office first of all, the SJ is the supervisor, maybe not the direct, but is the rater of
the prosecution team. And they advise the prosecutor, they’re the ones who go to the
convening authority and tell them what the charge and how to charge it. And it’s a joke
to think that a staff judge advocate can be fair and detached. I mean the staff judge
advocate wants your client jailed, he or she are the ones pushing the prosecution. And
a lot of times they come to court, or before court and they make the prosecutor rehearse
with them to increase their chances of a conviction. And I personally, in my experience, have heard
SJs when I was a prosecutor and this is years ago in the army and as an army trial defence
attorney we would be chastised for fighting cases. And if we won the case when we had
to go to one of these mandatory functions to you know a JAG function, you have to go
to the Christmas Ball or you’re an outsider, you show up there and you have the colonel
making fun of you, making comments about you, calling you the bad guys, not necessarily
dirt bag but making other rude and derogatory comments about you taking cases and fighting
cases and sticking up for your clients. So there is a real chilling effect, that’s always
gone on. But I think it’s gotten worse now.” — Mike
“I agree and we’re seeing it even creep into the judicial system. And again, I’ve said
this three or four times and I don’t think this is widespread at least I certainly have
not seen it. But it’s a huge problem and it undermines, it really has the opportunity
to undermine the integrity of the system. We all know that if you are charged with a
sexual assault you are guilty until proven innocent in the military. I mean that’s the
reality of it. A commander is going to put you on restriction, treat you like a dirt
bag, you’re going to be flagged or on legal hold, you get no favourable actions and you’re
not allowed to take leave for the most part, isolated from your family. And these cases
go on for 6 months, 12 months, 18 months. I just finished up a case out in Korea where
this soldier was my client for 2 and a half years it took to get, to finally get to an
adjudication of the matter. And he was treated like a dirt bag the entire time and then we
showed that he was not guilty. He did not do what he’s charged with and now he’s the
soldier who “beat the rap.” He walked because he got a high dollar civilian defence attorney.
And the reality is, he didn’t beat the rap, he didn’t walk, he was not guilty, we showed
that, it cost him a ton of dough which it shouldn’t have but it did and now there’s
no ramification back to the soldiers. Oh you’re a soldier who beat the rap. His career’s over
and that’s the real problem. His career would never recover even though he was found no
guilty or adjudicated to have no misconduct.” — Tim
“Tim that brings up another point and it is something that we discussed. Your client was
found not guilty and you’re now forced in cases rather then sit back and let the government
do their job and in many cases you have to prove your innocence. As the chilling effect
happens at all levels from the chain of command to the SJ office, what ends up happening is
a lot of military lawyers are afraid to take cases to court and fight the cases so I’ve
personally seen recently and I know you have a lot of military lawyers taking their article
120 sex assault cases to the judge alone when they know the judge is maybe not the most
fair person and they know the judge doesn’t give the client the best opportunity for a
fair trial. But they do it anyway and in many cases, when I speak to these lawyers, I’m
like why would you take this case that is, your client’s possibly innocents, take that
case in front of a military judge instead of a panel or a jury of their peers that are
really going to give them a fair trial rather then having one person sit there and you know
I get all sorts of excuses about this is a question of legal, or this a legal matter,
the judges know a lot better. We take every article 120 sex assault case to a military
panel, that’s the client’s best chance of getting a fair verdict. You have 12, up to
12 independent people on there, it’s a secret written ballot. Nobody knows who voted for
guilty or not guilty. They’re not allowed to discuss it. That’s the client’s best chance
for fair trial. But if your lawyer’s trying to push you into a quick, you know, unless
the client really wants it and there’s a good reason for it, into a judge alone case, you
need to think long and hard about whether or not that’s in your best interest. And I
know this will offend a lot of people. It’s going to offend a lot of judges, it shouldn’t.
I just think that you have a military panel, let the military panel make their decision.
If they find your client guilty so be it. If they find your client innocent so be it.
But you’re better off in the hands of the panel of enlisted officers or an officer panel.”
— Mike “Yeah Mike I agree. That’s the only way that
you’re going to get a fair shake. Today is the 25th of March and out here in Hawaii every
sex assault case in the army we’ve taken to a jury and as of the 25th of March, hope the
winning streak continues next week, we’ve won every case this year. Not guilty of all
charges specifications of every case. Now every time I heard the military lawyers were
saying, you can’t take it to a jury it’s a 25th infantry division panel, it’s a ATSC
panel and whatever it is there are hammers and so on. But every time we went to a jury,
[?], we pick our jury, we educate the jury and not just show that they didn’t prove their
case, we show that our clients aren’t guilt and every time they try to stack a jury, every
case this year so far as of 25 March, as of 25 May, we’ve won. Now contrast that to the
military attorneys out here I see taking cases to a judge alone. They’re scared to go to
jury for whatever reason and every case to a judge” — Tim
“Tim, let me just stop you there. Let me catch up there. If someone is afraid to go to a
jury then they should not be a trial lawyer. But it takes a big set of balls to take a
case where your client’s facing life in prison or 80 years, in front of a jury of people
that are combat veterans staring at you they think your client’s guilty when you walk into
court. So back to what you’re saying there’s a reason why people don’t what to take a case
in front of a jury if they’re scared and you shouldn’t be a lawyer if you’re scared to
go in front of a jury. But it takes some cojones.” — Mike
“You shouldn’t be in this business if you’re scared to go to a jury. You shouldn’t be in
the business. And it goes back into this guilty until proven innocent. When I go before a
jury, I’ve got a shot, I’ve worked the case, our investigators have worked the case, I
can show that not only will the government now prove it, but our client was wrongly accused
or overcharged or whatever the facts are I think once we show that, juries get it. You
know, but before that I hear it over and over and I know you hear this too Mike, the client
will come up to you after they’ve been acquitted and they’ll either break down or thank you
and they’ll say for a year, 6 months, no one has listened to me except for you. I have
been chastised, I have been branded as a rapist, and finally I’ve had my day in court. You’ve
showed that I’m not guilty. But up until then this innocent until proven guilty is nonsense,
because that is a fantasy and not a reality because every level from the command up has
treated these soldiers or these marines as if they were rapists even though we take it
to trial and the jury finds them not guilty. And I said the frustrating part is that they
can’t go back and sue the victims for lying, they can’t go back and sue the JAG corps,
or the army for malicious prosecution, or a prosecution that never should have went
to trial. And the commander they’re always branded as the guy who beat the rap, the guy
who went and hired the big attorney to beat the rap. And that’s not really the case. All
we’ve done is we’ve done our job and we’ve shown that they are not guilty. But they’re
guilty until proven innocent and even after we prove them innocent they’re still chastised.
That Mike is a broken system.” — Tim “Oh Tim, there’s no doubt the system’s broken.
I mean in the article 120 I tell every one of my clients when we walk into that courtroom
every panel member as they read the charges which are usually stacked are going to be
thinking after they finish reading, this guy’s a rapist. So you start out with them believing
that your client is a rapist based on all the brainwashing and all the stacked charge
sheet. So you really have a, you have to really overcome a mountain, climb over, jump over
a huge hurdle to even get a not guilty verdict. And it’s a lot of work, and it’s requiring
more and more skill as they throw more and more prosecutors and more and more games are
being played with evidence, evidence disappearing, people getting amnesia that might help the
defence, people being intimidated. It’s getting more and more challenging to win a case where,
you know, you can say that I put my faith in the system; I’m going to get the best result.
You need someone who knows what they’re doing that has done hundreds of cases like these,
not three or four, but has fought hundreds of cases that knows how to cross examine expert
witnesses and tear up the bogus witness that they put on the stand and make, if they’re
a liar, expose them as a liar. You’re in a world of hurt.” — Mike
“You’re a convicted sex offender. And the reality is these days the government goes
to extraordinary lengths to win at all costs. This guilty until proven innocent it really
is true and I’m sure we’re seeing this in the Pacific right and left, in particular
in Hawaii, blanket denials of every witness that we request relevant witnesses. We have
sex assault cases where the big issue is DNA. The government will fly in one or even two
experts from the [?] to testify about DNA, but they refuse to give the defence a DNA
consultant. Now why would they do that? Because they want to win at all costs. You know so
when I hear that you just pay the civilian attorney to beat the rap it drives me mad.
But those who say money can’t buy justice, well that may be true, but it buys you a fair
shot because what we’re seeing now Mike is they’re for example, they’ll deny me an expert
witness and you know what we’ll do, we’ll level the playing field, we’ll go hire them
ourselves. They denied my experts, we bring them on ourselves. And so I don’t care what
it takes, if you’re going to hire my law firm, or you’re going to hire yours we’re going
to give you a fair shot. And then when we win time after time after time again they
wonder how we do it, that’s how, we level the playing field. And it’s not just a tagline
because in the military more than anywhere else you truly are guilty until proven innocent.
And this notion of denying the experts, denying every witness, so like I said what we’ve done
to counter that is we’ll fly them in ourselves, we’ll fund it. You know if you’re charged
with the, I always say, not to talk money, I always tell clients I hope you’ve saved
for a rainy day because if you look outside it’s pouring outside. You know. You have to
find a way to level the playing field Mike.” — Tim
“Tim, it’s a simple as this: if you don’t level the playing field and you don’t level
or dominate the playing field, whether you’re innocent or not you better get used to sharing
a bunk with some dangerous person in a prison cell, not seeing your kids ever again and
loosing everything you have, your family, your career and you better just snuggle up
to your bunk mate.” — Mike “It’s ridiculous that we have to say that,
but you know Mike it’s just reality now. What amazes me and sometimes I tell potential clients
this, every once in a while I will get a call from someone who is charged with drug trafficking
and I get excited because it’s not a sexual assault case. Right now every single client;
every client of mine is sexual assault. And that wasn’t the case 2 years ago Mike. Its
unbelievable how many cases are sexual assault? And all you have to do in the military if
you’re a female is make an allegation and this is not to say that there aren’t actual
sexual assault because there are real sexual assaults, none of them are my clients. But
there are real sexual assaults out there. You make an allegation, you get a paparazzi,
you get handlers, you get your victim advocates, we’ve talked about they’re making their money,
and they you get cuddled, you don’t have to work and then when it’s too much for you,
you say I can’t handle the marine corps, I cant handle the army and here’s your honourable
discharge thank you very much. And does the accused get? Welcome to prison. It’s absurd
Mike. Like I said” — Tim “And on top of that, even if someone’s proven
to be a liar, even if someone has made up four past sexual assault allegations and they’re
proven again to be a liar, your client walks free. That person, that female is still going
to probably be diagnosed with some new concoction that they came up with called “military sexual
trauma,” MST? And not that sexual trauma is enough, now its military sexual trauma and
you’re probably going to get full service disability for the rest of your life. So not
only do you get an honourable discharge, you’re branded for life as this victim of sexual
trauma and the military’s going to be paying your full service connected disability. That
pisses me off because half of these people that get that are full of it and are liars
and there are some that are legit, but a lot of the ones I see are liars we proved that
they’re lying. But you have guys and ladies and service members coming from Iraq, Afghanistan,
they’re loosing their legs, getting blown up, having severe brain damage and they’re
getting 10-15% service connected disability and someone who went out and got drunk, cheated
on her husband, slept with some guy that they’ve been flirting at the office, that all of a
sudden it’s full service connected disability. That’s the system that we’re working with
right now. That’s what we’re talking about in terms of the system is corrupt at this
point in time. And unless you go out there and fight for your rights, you’re going down.
I have no other, people don’t like when I say that, they’re like no not in every case.
If you don’t fight for your rights and you have faith in the system and faith in everyone,
and you just kind of go along with the flow, you’re going to be handcuffed for sure. Whether
you did it or not, and you’re going to be going to a military prison and when you get
out you’re going to be a registered sex offender and you’re screwed forever. Your family is
going to probably leave you; you’re going to lose your kids. You can even have kids,
a lot of times you can’t even go to your kid’s school or go to the sports event or live near
a pool or park you name it. You’re going to be living in a trailer in the middle of Nevada.
That’s the bottom line.” — Mike “And the reality is, while that’s, some people
that’s harsh. That’s reality. Ask anyone convicted, no one does exit service of folks who get
out of the brig who have been branded as a registered sex offenders. But that’s the reality.
And the problem with this broken system I what motivates people Mike? People are motivated
by money. Money motivates people. So when these victims, these alleged victims know
that they’re going to get military rape trauma syndrome, and get a pay cheque to get out
because as you put it we see time and time again, they go out have a couple of drinks,
go hook up with a sergeant who’s married or she’s married, there’s a case of buyers remorse,
now it’s rape. Now you get mailbox money for the rest of your life. What motivation! It’s
incredible motivation. And now the poor soldier, who hooked up with someone at a bar, now is
forced to take everything they have and fight for his life because you’ll only get one chance
at a trial. Make no mistake about it. In the military, I say this over and over and again,
you’ll have the perception of you’re guilty until you go out and prove yourself innocent.
No doubt about it. That’s how you win trials. And the other way leads to a conviction. As
much as I don’t like to say that, that’s reality.” — Tim
“It’s sad but true Tim. So bottom line is if you’re accused of a sexual crime and you’re
in the military, you don’t wait until the last minute, you don’t have faith in the same
system who’s trying to prosecute you, and you need to take initiative. You need to do
your homework, do your research and put together the best team of expert defence lawyers that
you can afford. And if you can’t afford it, you might need to sell your pickup truck because
your pickup truck is going to be of no use to you when you get 15 years at Leavenworth.
It’s going to be re-po’d or your spouse is going to take it, or your spouse’s new husband
is going to be driving around in that car. So you need to be serious about this, we’re
not trying to bully anyone into hiring a civilian attorney but I’m telling you what I see every
day and people that are delusional about it. Everything’s going to work out, it’s all going
to be just fine and take no initiative to defend themselves and their freedom those
are the ones who are going to go to jail. That doesn’t mean that innocent people don’t
go to jail. I’ve had clients that we’ve fought it out for, there might be some underhanded
tactics used by the prosecution, evidence is hidden and sometimes, it’s rare but, sometimes
when you put together the best defence and if you have all these forces coming against
you, you don’t get a full acquittal in every case. Nobody can promise you that. But you
do have the best shot possible if you take initiative, get the best team you can on your
side and fight for your rights. Don’t be pushed around by the system or you’re going to lose.”
— Mike “Yeah Mike I’ll attack one point of that.
You’ve made an innocent point about selling your pickup that kind of made me smile a little
bit. But because I hear it all the time, I can’t guarantee an acquittal, no lawyer can,
but you want the best shot possible to try to take down the system. So I get it all the
time, people call I’ll quote a fee and they think it’s ridiculous. They’ll say Oh My Gosh
Mr. Bilecki your fees are absurd, you’re just trying to get someone to pay for your BMW.
Well that’s not the reality of it. The reality is, it takes a lot of time and money to assemble
experts, to assemble investigators, to put a team together to fight. And to look at it
another way, if you’re an E5, making $5,000 a month for sake of discussion, that’s $60,000
a year. If you get a 10 year sentence, you’ve lost $600,000 at a base line in lost salary.
Not to mention the prison, losing your family, sex offender registration. So when an attorney
quotes you a $60,000 fee, when you’re looking at a realistic 10 years, you’ve got to put
it into perspective as to what you’re getting. Again, no lawyer can win at every case that’s
just not the reality as Mike said; sometimes we’re beaten by the facts quite a bit. That
happens. But if you’ve saved for a rainy day and you’re in the military and just got charged
with sexual assault. The reality is that it’s probably pouring outside right now. That’s
just the reality Mike.” — Tim “Well Tim, let’s wrap this episode up, this
special report on guilty until proven innocent. I think we had a great discussion. And if
anyone has any questions feel free to chime in on the youtube channel, ask any questions
or contact us. Either one of us for a free consultation if you’re being accused of sexual
assault in the military.” — Mike “Thanks Mike, have a good one.” — Tim
“Take care. Bye, bye.” — Mike

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