Cmdr. Robert P. Monahan Jr., who is presiding, called a recess until Sunday morning.
Defense attorneys accused the alleged victim of faking exhaustion, and one said she would have a more taxing day at home than on the witness stand.
“What was she going to be doing anyway? Something more strenuous than sitting in a chair. We don’t concede there’s been any stress involved,” said Ronald “Chip” Herrington, defense attorney for one of the accused, Eric Graham.
“She shouldn’t get away with it,” he said of the accuser. “She could testify if she wanted to. When she wants to answer questions, she does, and when she doesn’t want to, she gets hazy.”
Herrington said in an interview that he has known Graham since the midshipman was 2 years old and helped get him into the Naval Academy.
He and other defense attorneys said the accuser’s attorney, Susan Burke, was manipulating the process and only pretending that her client was incapacitated by extensive cross-examination about her sexual history and truthfulness, in part because she had weekend plans.
“This situation has been manufactured,” said Andrew Weinstein, defense attorney for Tra’ves Bush.
Lt. Cmdr. Angela Tang, Graham’s military counsel, told the presiding commander that one worry was that the accuser would spend any time off she was given coordinating her testimony with other witnesses. “I have zero confidence” that she will abide by any instructions not to do that, Tang said.
The accuser herself told the commander presiding over the hearing, which will decide whether the case goes to a full court-martial, “I’m feeling as though I’m compromising,” and saying things “just to get off the stand.” She testified in closed session on Tuesday and open session on the three following days. At this point, she said, she finds it hard to concentrate, in part because she isn’t eating.
“I quickly am drifting off and thinking about other things or nothing at all,” she said.
The Washington Post does not generally identify alleged victims of sexual assault.
Burke testified that she’d change her own plans if she thought her client was up to continuing, but said, “I don’t believe she has the capacity.”
She asked the investigating officer to give the accuser until Monday to recover — and when he couldn’t immediately reach the academy official with whom he wanted to confer before deciding, Burke sent the young woman home anyway, and said she would be back Monday.
“This is borderline abusive,” Burke said on her way out of the building where the hearing is being held at the Washington Navy Yard.
Defense attorneys have asked that the hearing be cut off at this point, and said that the advisory opinion the presider will send to the superintendent of the Naval Academy should be based only on testimony heard so far.
Burke and other critics of the way the military handles sex assault cases have said that what they see as one of the most glaring problems with the current process is that an accuser’s commander, who can unilaterally ignore the advice of the investigating officer, isn’t required to have attended hearings like this one.
“The guy who decides,” Burke said Thursday, “isn’t even in the room.”
By Friday evening, the 21-year-old female midshipman had endured wave after wave of hostile questions and asked Monahan if she could skip testifying on Saturday because she was so weary.
“This is a cumulative thing,” she told him. He said he couldn’t excuse her as long as she was physically able to testify. She agreed to come back, adding, “But it doesn’t mean I haven’t been drained.”
The defense attorneys homed in on discrepancies in the accuser’s past accounts of the alleged assault. The Article 32 hearing at the Washington Navy Yard will determine whether the case will go to a court-martial, the military equivalent of a trial.
Tang, Graham’s military attorney, confronted the alleged victim, now a senior, about the differences between statements she made to investigators in May 2012 and statements she made later.
Under questioning, the woman conceded that she did not tell investigators initially that she remembered riding in a car with cornerback Graham and his co-defendant, linebacker Joshua Tate of Nashville, and being in a bedroom with the third defendant, Bush, of Johnston, S.C.
However, the woman repeated her prior testimony that in the months after the alleged incident in April 2012, she told investigators she was withholding information from them because she didn’t want the case to go forward. She refused to cooperate with investigators, she has testified, because she was scared of what might happen and because she didn’t want her mother to find out.
The investigation was closed in November for insufficient evidence and resumed in January after the alleged victim decided to fully cooperate. In June, Vice Adm. Michael Miller, the Naval Academy’s superintendent, agreed to charge the three midshipmen. The graduation of Bush was delayed pending the outcome. Graham is a senior, and Tate is a junior; both remain at the academy, as does their accuser.
Their accuser was repeatedly asked Friday about how she performs oral sex, which is a linchpin of Graham’s defense. When prosecutors objected, Graham’s attorneys said they were trying to show the act requires “active participation,” therefore indicating consent.
The alleged victim has testified that she can’t remember much about that night because she’d been drinking heavily.
The hearing has become yet another high-profile test case of how the military handles sexual assault cases at a time when sexual violence in the armed services has become an issue in the media and on Capitol Hill. As many as 26,000 service members said they were the targets of unwanted sexual contact last year, although only 3,374 incidents of sexual assault were reported, the Defense Department said this year.
Lawmakers have proposed putting sexual assault cases in the hands of civilian authorities instead of leaving them with the military chain of command. But that proposal does not have the support of key senators and military leaders.
That public debate has spilled into the hearing at the Washington Navy Yard this week in unexpected ways.
Defense attorneys have tried to characterize the accuser’s support for changing the way the military deals with sexual assault cases as a motive to lie about the alleged incident.
They also put Burke, the accuser’s attorney, on the stand Friday and accused her of manipulating her client into pursuing a case she doesn’t even believe in.
Once the Article 32 hearing is over, it will be several weeks before Monahan’s nonbinding recommendation reaches the desk of the academy superintendent, who will ultimately decide whether to proceed to a court-martial.