One of the former Naval Academy football players set to face court martial for allegedly raping a young woman at a party has joined a lawsuit that would force the Naval Academy's Superintendent to recuse himself from the case - a lawsuit originally filed on behalf of his alleged victim.
In a twist befitting the ongoing scandal surrounding the Pentagon's response to sexual assault within the ranks, both the alleged victim and her alleged attackers are now arguing that a fair court martial is impossible. Lawyers for Josh Tate argue that Vice Admiral Michael Miller inappropriately disregarded the recommendation of the military judge who presided over an earlier phase of the prosecution.
Because Miller will be responsible for choosing the jury pool for the court martial, Tate's lawyers allege he still has the ability to sway the court martial against Tate and Eric Graham, the other midshipman facing charges, and so Miller must remove himself from the case.
The motion, filed Tuesday, suggested, "It is not unreasonable to believe that a politically, but not legally, appropriate thing to do would be to subject a young man to an unwarranted prosecution and jeopardy under the assumption that the accused would likely be acquitted."
Susan Burke, the lawyer for the female midshipman at the center of the case, filed the original lawsuit in September before the military judge who oversaw the preliminary hearing, called an Article 32 hearing, submitted his report, said then that the Superintendent's closeness to the Academy's football team and actions during the investigation showed 'the probability of actual bias on [Vice Admiral Miller's] part is too high to be constitutionally tolerable.'
During the Article 32 hearing for the three men initially accused of the assault, the alleged victim underwent more than 20 hours of cross-examination by the defense, during which she was forced to answer detailed questions about her sexual practices and what she was wearing on the night she was allegedly assaulted. The nearly 200-page report filed by the cases investigating officer reportedly included lengthy and harsh judgments about the female midshipman's credibility.
This case is one of the most high profile sexual assault cases to make its way through the military justice system in the wake of scandals and reports that indicate rampant criminality in every branch of the military and decades of woefully inadequate reforms to deal with the issue. A report released in May estimated that there were approximately 26,000 incidents of unwanted sexual contact in 2012, and that only a few hundred of those incidents ever went as far as prosectution.
This is not the only case this year in which lawyers for alleged rapists have argued that increased attention on the military's sexual assault epidemic has made it impossible for those men to receive a fair trial. In June, a military judge ruled that two defendents could not be punitively discharged if found guilty because President Obama said in May, "If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged.” That comment, the judge ruled, constituted unlawful command influence.
While legislators like Sen. Kirsten Gillibrand of New York and Rep. Jackie Speier of California are working to overhaul the military justice system and remove prosecutions from within the chain of command, efforts have stalled thanks to the fights over the government shutdown and the debt ceiling. There are proposals that would make numerous changes that are included in this year's defense authorization bill, but there is still no timeline for the Senate to start debate on that bill.