Miller last week referred Tate and Eric Graham, 21, of Eight Mile, Ala., to face court-martial over the recommendation of a military judge who presided over a preliminary proceeding known as an Article 32 hearing.
Tate is charged with sexual assault, and Graham is charged with abusive sexual contact. Both are also charged with making false statements. They face the possibility of imprisonment and expulsion from the academy.
The alleged victim, a female midshipman who says she was assaulted at an April 2012 off-campus party, had already asked Hollander to remove Miller from the case. But at a hearing last week, Hollander declined to get involved and refused to grant a preliminary injunction blocking Miller’s participation. Hollander said a civilian court had no place interfering with an ongoing military investigation.
The superintendent’s decision to pursue a court-martial, an academy spokesman said last week, “is not based on the probability of a successful prosecution. Rather, it is [Miller’s] responsibility to independently evaluate evidence and determine if reasonable grounds exist that a crime has been committed by the accused.”
Tate’s attorneys argued in the motion that Miller is biased against the defendant because he chose to refer the case to a court-martial over the recommendations of the military judge, as well as a staff judge advocate who is tasked with providing legal advice to Miller.
“The Superintendent has already demonstrated that he will not protect any interest of [Tate],” the midshipman’s attorney, Jason Ehrenberg, wrote in court papers. “And, the negative consequences [to Tate] of the Superintendent’s bias will not end with the decision to refer the charges to a general court-martial.”
Under military law, Ehrenberg said in an interview, Miller has the authority not only to charge defendants and determine whether they face court-martial but also to choose the pool of service members used to form the jury. And in case of a conviction, Miller has the authority to set aside the punishment.
Miller bowed to pressure from the alleged victim by stipulating that he would not decide whether to proceed to a court-martial until Hollander had ruled on the alleged victim’s request to remove him from the case, Tate’s attorney said.
In court papers, Ehrenberg cited comments made by President Obama on military sexual-assault cases as further proof of the “turbulent political environment” in which Miller is operating: “If we find out somebody’s engaging in this,” Obama said this year, “they’ve got to be held accountable — prosecuted, stripped of their position, court-martialed, fired, dishonorably discharged. Period.”
Critics of the military’s handling of sexual assaults have argued that such cases should be removed from the chain of command.
The Defense Department has estimated that as many as 26,000 service members were the targets of unwanted sexual contact last year, although only 3,374 incidents of sexual assault were reported.
The release of those numbers coincided with several high-profile cases this year, including an Air Force general’s decision to overturn the conviction of a fighter pilot on sexual-assault charges and the arrest of the Air Force officer in charge of sexual-assault prevention in the alleged groping of a woman outside a Crystal City bar.