Naval Academy Sexual Assault Case: Court Martials Move Forward Despite Lack of Evidence

Naval Academy Sexual Assault Case: Court Martials Move Forward Despite Lack of Evidence

Military Law News Network – Nov 24, 2013 – Naval Academy Sexual Assault Case: Court Martials Move Forward Despite Lack of Evidence – In this episode, veteran court martial attorneys Michael Waddington and Tim Bilecki discuss the most recent Naval Academy sexual assault court martial that involves Academy football players and a female midshipman. The case was pushed forward despite a legal report that determined that a conviction was unlikely at trial.

Here is a news clip related to the case:
“A report by a military officer says it will be a difficult if not impossible task to prove two former U.S. Naval Academy football players sexually assaulted a midshipman because the woman’s contradictory and misleading testimony heavily damaged her credibility.

The investigating officer’s report, which was obtained by The Associated Press, recommended against court-martialing the accused….

But the academy’s superintendent decided last month to court-martial Midshipmen Josh Tate and Eric Graham in the case involving an intoxicated classmate at an off-campus party.”

Transcript:

Mike:              Military prosecutors will have a difficult if not impossible task of proving two former US Naval Academy football players, sexually assaulted a midshipman because of the woman’s contradictory and misleading testimony, damaged her credibility.  Now that’s according to the investigating officers’ report that was recently released to the associated press.

Mike:              This is Michael Waddington with the Military Law News Network and today I’m joined with Timothy Bilecki.  Tim despite that recommendation from the article 32 officer, Vice Admiral Miller ordered that this case should go forward to a Court Marshall.  What are your thoughts?

Tim:                Mike I can’t say I’m surprised.  What I was little bit surprised about when this Article 32 report was released, is that the investigating officer actually drafted a report saying it shouldn’t go forward.  That actually surprised me a little bit, but even knowing that the recommendation was for it to not go forward, I’m not surprised that the Convening Authority went for it anyways.

We see this time and time again; I know you see this in your practice.  I certainly see it in mine.  We go to the Article 32 hearing; you put forward evidence showing that the case should not go to trial, that the government will have a difficult, if not impossible time obtaining a conviction.  But at the end of the day they still want to go forward.  The reality is Mike that the military justice system, when the Convening Authority really cared about justice, they’d look at the report, it’s a recommendation and they’d follow the recommendation.  The Convening Authority even knows, really nothing about the case besides what he’s been briefed on and what he’s reading in the report.  Basically he rubber stamps this and seems to not care whether there’s evidence or not.

This is a show Mike; this is a show because it has media attention.  It is again the Warrant Sexual Assault and come hell or high water this case is going to go to trial.  You know I tell clients this all the time and I’m sure you probably do as well, that no matter what happens at the article 32 often times these cases will go to trial no matter what.  So it really brings an interesting issue on how important is the article 32, what is the fairness in the 32 and do commanders even listen to it.

The next issue that comes to mind is strategically for attorneys and practitioners, how do you handle the article 32, knowing that no matter what you do the case may go forward or not.  Now that’s a separate question, but to get to yours Mike I’m really not surprised that it’s going forward.  I figured that was going to happen, regardless of the 32 report.

Mike:              You know Tim I might have been more strategic … better strategic move to have released that entire report before the Admiral made his decision.  I think it was a tactical blunder for the defense, having such a document into possession.  That outlines all of the major problems with the government’s case. The inconsistencies, the lies of their star victim/witness.  They had that in their possession, instead they sat back and waited and they hoped that Vice Admiral Miller who’s a politician.  He’s a Superintendent in the Academy and he’s going to do whatever it takes to save his own skin and then do what’s best for him.

So I don’t why they put their faith in him, that he would do the right thing and not go forward and follow that recommendation.  Because I think if they were to put that report out from the very beginning, as soon as they got it, leaked it to the press.  Give it to everybody, put it on the internet and show the lack of evidence and the problems with case.  Then Vice Admiral Miller might not have taken the easy way out. He might not have been Pontius Pilot and washed his hands and sent it off to the jury.  Which is not a very … it’s expected of someone in his position, but it’s not a move that someone with a lot of moral courage would take, in my opinion.

Tim:                Yes Mike I couldn’t agree with you more.  As I read this as it recently came out, I was a little bit baffled that the defense team full of experienced attorneys didn’t leak this or get it out to the media.  Not to necessarily show that they did some great job at the 32 and it sounds by all accounts they did.  But to really put the pressure on the Convening Authority and not to send it forward.

This is a CYA as we call it in the business.  The Convening Authority could have send, we took this case to an Article 32, it was obviously fully investigated.  Hours and hours and hours of cross examination and witness testimony that went on for days.  An independent investigating officer listened to all the testimony; this was an independent investigating officer, that’s appointed by the government, not by the defense.  They wrote a very defense favorable report, basically saying there’s nothing to this case.

This witness doesn’t have the credibility, her statements are too inconsistent and it shouldn’t go forward.  If you put that out to the Convening Authority can at least say, we investigated this case.  There was nothing to it, these are obviously, or not obviously these were false allegations and we’re not going to send it forward and do the right thing.  As you put Mike, have that moral courage, but instead the Convening Authority instead of doing the right thing for his sailors, is basically saying hey, I care about another star and I care being a politician more than doing the right thing.

 

So I think it was a tactical mistake by the defense team and I think that it really shows how once sided this system is and how it is very difficult to get a fair shot at a Court Marshall especially one involving sexual assault.  Even more so one that has this type of media publicity.

Mike:              Tim, I couldn’t agree more.  Interestingly Susan Burke who is a lawyer that’s trying to sue and she has sued the US Government claiming that they’re not protecting victims of sexual assault.  She’s a tort lawyer, meaning she goes around suing people claiming that they were negligent basically.  She was involved in this case and she’s the one that brought this case really to the media’s attention.  Now that they got that recommendation that was not favorable and they went forward anyway, she’s now claiming the military’s incompetent and they’re not able to handle this case.  So she wants more prosecutors, more resources.  In interesting twist Susan Burke this attorney, is now claiming according to media reports that the investigation was flawed and she’s just attacking the system up and down.

But Tim you know that she’s trying to sue them for money.  I’m not sure she has an active ongoing suit, but she’s trying to build another suit so she can get a second bite at the apple.  She had previously sued the US government or members of the US government over these cases.  She was also involved with that movie, ‘The Invisible War’.

So whether and really for their case, for the civil case claiming the military is incompetent, they played right into her hands.  What’s going to happen is, they wrote that recommendation saying, you should not go forward, there’s no evidence.  The military, Vice Admiral Miller, goes I’m going to go forward anyway, I’m going to let the jury decide.  What happens when the jury finds these two gentlemen not guilty, which is probably going to happen?  Then that’s perfect, whenever they go forward they say look, you’re incompetent, you can’t even win a case at Court Marshall.

I don’t know, I think the Admiral should have just done the right thing and he would have saved, not only done the right thing by his sailors, but it was the right decision based on the factored evidence.  Now what’s going to happen is he’s set up the prosecution for failure and the military is going to be attacked if this case turns into a not guilty verdict.

Tim:                Mike the interesting thing is as I’m following this, I certainly don’t have all of the facts but I’ve watched Ms Burke go forward.  This is a money play for me, she is a tort lawyer, she is looking for a law suit for money.  To me as a watch what she does, as I watch the way she’s playing this case out.  This is not about justice, this isn’t about victim rights, this isn’t about changing the system.  That is a front and if you look at it have some transparency, she’s trying to get a verdict for money later on down the road.

Because what to tort lawyers want to do, they want to win cases, because cases that they win involve money.  I think she’s playing this to the media, I think the government is completely played into her hands and as you put it, this goes to trial there’s a not guilty verdict, which is likely the result from the evidence that I’ve seen so far.  Especially the IO’s report, next comes the civil suit and the cash starts flowing in.  She’s after a money grab in my opinion and she wants to do this for money and not for some victim’s rights or for justice.

If she really cared about victims’ rights and justice and so on, she’d say we did an article 32, the report came back.  The report says that your client essentially, that this victim is not credible, she’s inconsistent, she’s not being truthful and she’d move on.  She’d say this is really not some sexual assault survivor and some victim of sexual assault, but one just one more individual that’s using the system and playing games and she’d move on to the next case.

But that’s going to happen Mike, because in this case there’s money on the table and money’s involved and they’re playing right into her hands.  In my opinion, she probably couldn’t care less about the verdict and a not guilty verdict in my opinion is going to help strengthen that case she has on the civil side.  So it’ll be real interesting to see how this plays out.  My prediction on this is there will be another law suit that’s filed.  It’ll be filed especially if there’s a not guilty verdict and there’s going to be a big dollar sign at the end of that law suit.  Of course she’s probably on the hook for 30, 35, 45% of it.  So this is not a victim rights issue, this is a payday issue for her.

Let me add one more thing Mike, I know you want to jump in, but if this does go to a civil suit and if she does get compensation for this, I challenge you Miss Burke take all of the money that your law firm would receive from this and donate it to a victim rights charity.  If you really care about it, donate all of the money received to a victim rights charity, certainly minus your expenses.  Then let’s see what your interests really are.  Mike?

Mike:              Well Tim I completely agree.  I would love to see in any of these law suits involving military sexual assault, or military sexual trauma.  I would love to see these tort lawyers who claim that all they want is justice for these poor victims.  Take your fee and either let the poor victim have all of it, you know minus your travel expenses or donate it to a charity.  To some sort of a charity that protects abused women, abused children or actual victims of sexual assault and take no fee.  Maybe she’ll do that who knows?

But in my experience with most tort lawyers, they don’t get involved in these cases to donate all their money to somebody else.  No they get involved in these cases to donate their money to the local Portia Dealership.  That’s my experience.  Well that’s all we have for today on this particular topic, again we will do a follow up episode on these article 32’s and how Congress and many law makers want to disband or do away with article 32’s and the consequence that’s going to have for service members in their own fight for justice.

From the Military Law News Network from Honolulu this is Tim Bilecki saying good evening and Mike Waddington, saying good evening as well.  Take Care.

Sexual Assault Case