But Burke, who arrives in court with damp hair and her arm around her client, does manage to communicate all the same, exhaling loudly and throwing her hands in the air by way of exhorting prosecutors to get in there and object. During the break after her client was asked on the stand whether she wore underwear to the April 2012 party where she was allegedly violated, Burke stage-whispers to the military attorneys, “This is harassment, and it has to stop!”
Burke has just in the past two years taken on an all-too-booming pro-bono practice representing those who’ve reported being sexually assaulted while serving in the U.S. military. “Once I showed the least interest” in such cases, she said, “I was inundated.’’
Still, she says as she sits down for an interview after another long day in a hearing room at the Washington Navy Yard, “I’ve never seen anything like this” multi-day, few-holds-barred cross examination of an accuser at the preliminary proceeding that will decide whether the three defendants will be court-martialed.
A former white-shoe defender of white-collar health-care fraud cases, Burke, 51, has morphed from what she calls a “regular corporate defense attorney” for clients including IBM and Microsoft into a nearly full-time taker of cases with a social conscience.
She had always done what she calls “human rights-y stuff” on the side, says the Georgetown and Catholic University law graduate who grew up on military bases. It was a post-9/11 Washington Post article by Bob Woodward quoting an American official who warned that the “gloves are off’’ in response to terrorism that got to her, she recalls, and she became so concerned about the possibility of government-sanctioned torture that she became a lead attorney representing detainees at the Abu Ghraib prison in Iraq. She won settlements from Blackwater — now Academi — for 68 Iraqi civilians, and became the lead attorney representing soldiers suing Halliburton and KBR for disposing toxic waste in open-air burn pits in Iraq and Afghanistan.
Along the way, some of her fellow partners at Montgomery McCracken Walker and Rhoads in Philadelphia became uncomfortable with what they viewed as her work on behalf of terrorists, she says, and in 2005 she started her own firm.
And it is that crusading background that landed Burke in the witness chair last week. Attorneys for the three defendants openly blamed her for their clients’ troubles and questioned her on the stand about her “manipulations.” Isn’t it true, one of them asked her, that “you’ve got a plan, whether this case goes to a court-martial or not?”
“A plan?’’ she repeated.
Sure, said Ronald “Chip” Herrington, representing Eric Graham, 21, of Eight Mile, Ala. “As part of her crusade,’’ he told the presiding officer at what the military calls an Article 32 hearing, Burke is “trying to push the complaining witness through this process,’’ and is, he said, using the young woman to further her own agenda. If the case is thrown out, Herrington said later in an interview, that would be an even better outcome for Burke, because it would make the military look unresponsive.
“She wins either way,’’ he said.
Graham and the two other defendants, Tra’ves Bush, 22, of Johnston, S.C., and Joshua Tate, 21, of Nashville, have denied any wrongdoing and said that anything that happened that night was consensual.
Unlike her client — who has occasionally broken down on the stand, and while testifying holds on tight to the mala meditation beads that her sexual assault counselor gave her — Burke was frowning but matter of fact as she was accused by defense counsel of slandering the innocent, exaggerating the problem and being in this for the publicity.
She agrees that she wants attention and justice for the 26,000 service members who the Pentagon estimates were sexually assaulted last year. Of those, 3,374 troops filed complaints.
Burke does have an agenda, of course, and has argued at every opportunity that Congress should pass the legislation proposed by Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Jackie Speier (D-Calif.) to overhaul the way the military handles sexual assault complaints, a tiny percentage of which now result in convictions, and take final decisions about the punishment of all such serious crimes out of the chain of command.
“I want to sound the alarm,’’ she says on the stand. “The Naval Academy did not do an adequate job of protecting her,’’ she says of her client, after word got out that multiple men had had sex with her at a party she barely remembers, where Burke contends that the young woman was too intoxicated to give consent. And as she sees it, this whole hearing is not just grueling but a “charade,’’ because the advisory opinion of the presiding officer could be unilaterally overruled by the Naval Academy superintendent, who has not attended the hearing. “The decider isn’t even in the room.”
After Burke testifies, an Associated Press reporter asks whether she wants to rebut the accusations of defense attorneys, but she takes a pass: “They asked the victim that’’ — whether she felt Burke is in this for the PR, because she isn’t being paid, or out of animus against the military — “and she said she did not feel that way, so that’s all I care about.” (Actually, her client answered this way: “I think she just doesn’t like rapists. I don’t think anybody likes rapists.”)
But of the defense contention that the young woman’s testimony has been full of inconsistencies, Burke pushes back hard outside the hearing room. Any alleged discrepancies, she says, are based on the notes of careless Naval Criminal Investigative Service investigators. “These are the same morons who sent her out alone at midnight to do a wiretap without a fully loaded cassette” once the young woman finally did agree to cooperate with the investigation, and to speak to one of the accused while wearing a wire. “Then, when she did everything they asked, they said, ‘Sorry, it didn’t work.’ And her credibility turns on them?”
The lawyer describes her professional motivations this way: “I’ve always been interested in fairness,’’ she says, and then laughs hard at herself, realizing how self-regarding that may sound.
As for the charge that Burke is anti-military, her father, retired Army Col. Frank Burke — who served tours in Korea and Vietnam, where he was an assistant to General William C. Westmoreland — insists that’s “not at all” the case. “A lot of good things go on in the service, but some bad things do, too, and I think she has a pretty clear head about the difference.”
As he sees it, his daughter is “always on the lookout for injustices of any kind — and she’s not a shrinking violet.’’
Born on an Army installation in Würzburg, Germany, Burke and her two sisters were trained to answer the phone, “Colonel Burke’s quarters.” “If we were late returning a library book, my father’s boss called, so knowing the kind of control that the military has” over those who serve, she says, made the sheer number of assaults even more surprising.
Their family lived all over — in Oklahoma, Kansas, Denmark and finally Northern Virginia, where her father and her mother, Mary Burke, a nurse practitioner who taught nursing at Catholic University, stayed on after he retired.
Her dad, who earned his undergraduate degree at Harvard, studied law in mid-career in the Army, “so I guess that got this whole thing started,’’ he says of the fact that all three of his daughters became lawyers. One of them, Elizabeth Burke, is with the Brady Center to Prevent Gun Violence.
In 2009, Susan, her husband, Jamison Koehler, a criminal lawyer, and their three children moved from Philadelphia back to Washington to be closer to her family. Her work over the past decade has been the basis of two documentaries, “The Ghosts of Abu Ghraib” and “The Invisible War,” about sexual assault in the U.S. military. And on Tuesday, she will join the whistleblowing firm of Katz, Marshall & Banks, in addition to her solo work. “It’s just nicer to work with other people,’’ she says, and between “rape, child molestation and torture” cases, “sometimes you want to get away” to litigation that’s lighter in comparison.
She won’t stop pursuing military sexual assault cases, however, until she sees fundamental change — “and the only thing I know how to do to help people is to sue.”