Military Law News Network – Dec 5, 2014 – In this episode, defense attorneys Michael Waddington and Tim Bilecki discuss whether victim rights trump the Constitutional rights of the accused in a military court-martial?
Do Victim Rights Trump the Rights of the Accused in a Court Martial
Below is a transcript from the YouTube video: Do Victim Rights Trump the Rights of the Accused in a Court Martial?
Can the military justice system strike a fair balance between protecting the constitutional rights of someone accused of a crime and the rights of someone that is an alleged victim? This is the Military law News Network. Today, I’m joined by attorney Timothy Bilecki. And I want to just start and get right down to it. Tim, can there be a balance? I think it’s tough to have a balance.
Mike, the Constitution protects those accused of crimes, whether they’ve committed those crimes or whether they are falsely accused. And that’s why in this particular system of justice, our American system of justice if the government’s going to take away an acute someone’s fundamental right, what’s the most fundamental right we have, as a society, it’s our freedom because, without our freedom, our money means nothing.
Without our freedom, our wives, and our children, our lives mean nothing. Military servicemembers stand up and take an oath to protect the freedom that this country provides its citizens. And so, that’s the most fundamental right an individual has. So if the government’s going to try to take that away from someone, they need to prove beyond a reasonable doubt that that person committed whatever crime they are accused of. So that’s the most fundamental right.
So I think the problem we have is if we tried to give these alleged victims, we don’t know if they’re victims, yet we call these people victims. But there’s been no trial, there’s been no verdict, but we presuppose The fact of the proposition that they’re victims, but we don’t know. Okay, no different than we can’t presume someone’s guilty. before they’re convicted, we can’t presume someone’s a victim before there’s been a trial.
So we tried to balance these rights is very tough to do. Because if we give more of these rights to alleged victims, and we start building our entire system on being victim-centric, then we must usurp the rights of an accused in our constitutional rights. There’s no middle ground. You know, there’s no way the more rights we give to an alleged victim, the more we must take away from an accused.
I don’t think you can have it both ways. Well, I think there can be a fine balance between protecting the alleged victim and her privacy rights, for example. And also giving someone a fair trial and making sure that their constitutional rights are not run over. The problem is, that’s not how commanders are looking at it. They see it as like scales of justice. You’re either protecting the rights of the victim and trampling the rights of the accused, or vice versa. And I don’t think they’re even on the same scale. And they’ve been, they’ve been part of our law dating back hundreds of years from the very beginning.
Because in the old system under the British, if you were accused of something, you would have to prove your innocence, they would fabricate evidence, you would be assumed to have been guilty, and your rights in colonial Americans would have the rights trampled on left and right. Their words would be twisted. And there’s this presumption that you were guilty just because there’s an allegation made. That’s why the founding fathers one of the reasons why they included those rights in the Bill of Rights in our Constitution.
So that being said, Tim, I think you can have both, but you can’t have one. You can have victim rights at the cost and expense of trampling the rights of the accused. And that’s kind of where these victim advocates are going. And little by little, they’re chipping away at the constitutional rights of someone accused, not convicted of a crime. They’re making it unless into a civil system. You know, they have a paparazzi. They’re given an immediate Papa Razzi and just surround them. And this is not a civil case. It’s a criminal case.
A victim is one witness, frequently in many. So that particular witness, it, if you look at it, isn’t any different than the other witnesses. Other she may have a more important role to play in the facts. But we don’t see other witnesses given this panoply of rights. The reality is that he or she is an alleged victim unless and until the accused guilt is proven beyond a reasonable doubt. So given that, why are they given a free lawyer who is paid for and funded by my taxpayer dollars, your taxpayer dollars to be what I believe obstructionist in the system, to try to prevent evidence from coming forward, to try to keep relevant evidence out of court, to prep them on how to testify, which often isn’t consistent with what happened, because it goes back to this one at all costs.
What’s happening is these rights of an accused the constitutional rights are being eviscerated by victims rights, which have no basis whatsoever in any type of law. We’ve become so victim-centric when the center of focus should be on the accused on the defendant. Did they commit the crime? Let’s Make sure that there’s enough evidence to convict them and make sure that they have a competent lawyer on their side to represent them, so people don’t get falsely accused. And Tim, as I mentioned to you earlier, I got really upset when reading an article. It was an interview with Marine Corps Sergeant Major . I think that’s how you say his name.
He’s a senior enlisted adviser to the Chairman of the Joint Chiefs of Staff. He says our first and foremost priority is protecting the victim. That is the first and foremost goal and objective, protecting the victim of the senior leadership in the military. And that’s what is wrong. He is wrong is not the first and foremost goal. The first and foremost goal is making sure you get it right, making sure that if you charge a marine or charge a soldier or an airman that there’s a good faith basis to believe the offense occurred, not to protect the alleged victim and all costs who don’t even know if it’s a victim. He is fundamentally wrong. Michael, let me tell you a story that I mentioned in one of the previous episodes.
I was over in England the week of Thanksgiving defending an airman and NCO outstanding record. He had an office affair with a colleague. She was threatened that if she doesn’t report the affair, they will turn her in for adultery. So she goes to make a restricted report, they tell her she has no choice but to go to the SARC. She makes a restricted report. And they say that people already know about your affair. Therefore, this is unrestricted, and you’re a victim. This case gets pushed to a general court-martial. This into an article 32. The back at Lackland, where this initially occurred about a year and a half ago.
Even the Jags there and OSI did not believe there’s probable cause. His commander and his media chain of command did not believe there’s probable cause, and they’re supporting him. Because the problem is the victim is not even saying that she’s a victim. She even said that on the stand. And I mentioned that in a previous episode. But my point is this. They moved to the court-martial article 32 to another base in England. It was quite a distance away from where my client was stationed. He then said, okay, you know, I have to go down there for four days. And they said, Hey, buddy, that’s on your dime. Because you’re accused of a crime, you have no funding. We’re not giving you a TTY. You’re going to be.
We’re not giving you anything. You have to get there on your dime. This, this guy who has already been raked over the coals for a crime he didn’t commit, he gets put he goes there, and he’s begging them, so they give them an empty barracks room with no sheets. Okay. At the same time, Tim, we were supposed to speak to the alleged victim, who, by again, she’s not a victim. She even doesn’t say it herself. And she wasn’t around. Okay, we go on her Facebook page. And after investigating this, we find out that his chain of command senior chain of command, his Colonel, who refused to provide him with a, for example, military lodging at the local law at the military lodge, wouldn’t pay for it.
His commander paid for this alleged victim to fly to London with a friend, and they were hanging out in London while we’re up there preparing for the court-martial and anticipate trying to the interviewer. And we know that because she’s touring around London with her friend at the expense of the unit of my client’s unit. And she’s posting pictures of herself in front of Big Band smiling, going out having a great time. To me, that is a disgrace. I think his commander, his decision to pay for her and her friend to come over and not pay for his falsely accused airman and hasn’t been convicted, is a travesty.
It says a lot about the current system when Yeah, I think that’s it’s absurd. And it just kind of really bothers me is it certainly isn’t my case. But it bothers me that they’re going to treat an airman through the chain of command backs who OSI says there’s not enough evidence to go forward that none of this occurred. They’re gonna make him come on his dime, give them a barracks room without bed without sheets. But meanwhile, this alleged victim who claims you’d even state she’s not sure if she’s even a victim, in this case, is hanging out in London, funded by my taxpayer dollars, and even And what’s even frustrating is why are you even at a 32? Why are we even had article 32 if everyone in the chain of command says nothing happened?
There’s not enough evidence to go forward. She testifies that she’s not even sure if she’s a victim. She wanted to make a restricted report, and only because she was concerned about maybe an adulterous relationship she was having all of this gets spun into another court-martial again on my taxpayer dollars, and at the expense of what the most important person ever. The accused is the accused airman who did nothing wrong but finds himself on the other side of the US government. It must be terrifying to be in that position.
But it happens week in and week out. But the thing is, no one has the moral fortitude, no one can stand up and talk about it and tell people and watch our program that this stuff happens, you know, and we got to make it right. And Tim, let me tell you something, it doesn’t matter if you’re not guilty. And that’s what I tell people all the time, when they call me, they say, Hey, we watched your show, we watched some of your videos, you know, I didn’t do this, I’m not so worried. And I tell them, you know, what, if he didn’t do it, then you have even more of a reason to be worried.
Because what you’re gonna see is they’re gonna be coaching witnesses, they’re gonna be hiding evidence, and they’re gonna put on people that will come in, and they will, they will come up with a theory to try to get you convicted of a felony. It doesn’t matter if you did it. So you should be scared. If you did it, you should also be scared. But if you get convicted, you had to commit. But the bottom line is if you didn’t do it, or you’re facing trumped-up charges back, I couldn’t imagine anything more terrifying waking up every day, knowing that you could get life in prison for something you didn’t do.
You put your faith in the system, and the systems let you down. Yeah, and the system is being more and more manipulated, not just to let you down. But to gain that conviction over you, which is why we talk about in the system, we’ll see some of the best military prosecutors prosecuting cases. The alleged victim has their attorney like I believe they are completely obstructionist. Most of the time, the jurors are handpicked by the convening authority or the general. And then you have all of this. You have the might of the US military on the other side. But frequently, you’re given one, military defense counsel, often right out of law school.
That’s a scary proposition. Like, it should be the other way around. This is what we see week in and week out. And let me tell you something else. When I was over there in England, they asked the victim for her cell phone records for I’m sorry for her text messages because she was texting my client back and forth, sending him naked pictures. sexting with him. This was all on her phone. So she’s kind of clueless. And she’s like, I don’t know, what should I do? She asked her SBC. And after that conversation, she tells OSI, I’m not giving you my text message.
I’m like, give you my phone. And then miraculously, all those messages were gone, deleted. And then she got a new phone, and the old phone with all the naked photos she was sending disappeared, and she doesn’t know where it is a lawyer, and I brought this up at the hearing. I don’t care if you’re the victim’s lawyer, whatever, you cannot obstruct justice, you cannot suborn perjury, you can’t lie. You do that what we’ve been doing, Tim. I’m tired of it. I’m tired of these SVCs suborning perjury and destroying evidence in a case those are all crimes. But they also these people are lawyers. And often they forget, they have state bars.
When you destroy evidence in violation of law, you can now expect a bar complaint to be filed against you. And Tim, in this case, we’re lucky because we have evidence that these things were destroyed. Because my client we were able to recover off of his old phone. Some of these text messages that we knew were out there, including about 30 photographs. before, during, and after the affair, where she said my client naked photos saying she wants to have sex.
Yeah. And that’s why one of the things that we always try to do is cell phone forensics on our client’s phone right off the bat, often to prove, because I know for a fact that these alleged victims get into will ask for their phones to ask for their records, because they’re often sexting or flirting with our clients. They talk to their svcs. And mysteriously, they lose the phone. They haven’t lost the phone in three years. But you lost the phone one week after I asked for the evidence. That is suborning tampering with evidence. And what I like to do is I’ve considered calling some of these SPS, especially victim counselors, witnesses.
Now they may try to say that they’re protected, but let’s put them on the witness list. And then let’s see what you can testify to as to it. Did you give me legal advice? Yes, it may be protected. If that doesn’t work. They all have a state bar. Because you because what’s happening is they could give a crap about the accused rights. It’s a win at all costs. And they are it’s a travesty for our systems, what’s happening. And I’ve seen it too. I’ve seen it several times, where especially victim counsel will talk to an alleged victim, and evidence just goes missing. Shocking.
Yeah, Tim, I tell you the only way that I believe in getting a fair shake in the military justice and right now it is really to get in front of an independent jury and go in there with a very experienced lawyer the way that they’re put stacking the deck now I would spare no expense. While there are no guarantees in any sort of case. But if you go in there and just leave it to chance and go with your attorney who could have the best intentions, but he’s only been doing this for a year, you’re gonna get your butt kicked in most cases. A
The problem is getting your butt kicked. One thing is getting your butt kicked and going to jail for 15 years walking out as a registered sex offender. Your wife’s left you, your kids have forgotten about you. They had to go through $100,000 in state funding counseling because Daddy’s a rapist in jail, mom’s found some other guy, now they have a GED instead of a college diploma. All of these things happen because you went in there and tried to just go with what you had. And the might of the US military ran you over. So yeah, it’s getting your butt kicked, but it has extraordinary and unforeseen consequences.
That is, it’s really hard to even envision when you save one person. It makes all the difference. And we tried to do that over and over and over again. But really, just look, you know, speaking with and talking to the family members as they go through this grueling process. It’s very stressful for us as attorneys. We have to relive these, this stressful moment, you know, life or death moments with our clients every week.
The bottom line is it is getting tougher and tougher to fight against this Goliath that is the military system. You have to go in with the best attorney that you can’t afford. Again, I think at the end of the day, I think that the conclusion we can draw from this is that the military system right now is flawed. It’s being manipulated to get convictions.
The senior enlisted advisor for the military, his thought of being the number one goal is protecting the rights of victims who aren’t even victims until a conviction is completely wrong. And at the end of the day, I don’t think you can balance that. I think we can’t balance it, nor do I think you shouldn’t be balancing it. But that’s a fight. We’re gonna be fighting for many years to come, Michael. Okay, Tim, I appreciate your insight on this very touchy, controversial subject, and I look forward to the next time. Great. Thanks. I appreciate it.