Naval Academy superintendent doesn’t have to recuse himself from sexual assault case


Three ex-U.S. Navy football team members accused of sexually assaulting a female midshipmen, from left: Eric Graham, Joshua Tate and Tra’ves Bush. (AP)
October 7, 2013

A federal judge on Monday denied an attempt to force the superintendent of the Naval Academy to recuse himself from a case of alleged sexual assault by three former Navy football players.

The victim of the alleged assault — a 21-year-old female midshipman — had filed a federal lawsuit seeking an injunction that would require the academy’s superintendent, Vice Adm. Michael H. Miller, to give up authority over the case. Miller is responsible for deciding whether the three accused midshipmen should face courts-martial, the military equivalent of trials.

U.S. District Judge Ellen Hollander said Monday she did not find grounds for the court to interfere in a military court proceeding. “There are many reasons this is not a place for a [civilian] court to intrude,” Hollander said.

The sexual assault case centers on an April 2012 “toga and yoga” party at an off-campus house rented by Navy football players. At a hearing last month at the Washington Navy Yard, the alleged victim testified that she had been drinking heavily and remembered little about what happened that night. In the days following the party, she heard rumors and saw social media posts that suggested several men had sex with her that night. She initially refused to cooperate with Navy investigators, then changed her mind this year.

In June, Miller agreed to charge the three athletes — Tra’ves Bush of Johnson, S.C., Eric Graham of Eight Mile, Ala., and Joshua Tate of Nashville — based on recommendations by Naval Criminal Investigative Service officials. The charges led to last month’s Article 32 hearing, a preliminary proceeding where the woman faced more than 20 hours of hostile cross-examination by attorneys for the accused men.

Timeline

Past coverage: Naval Academy rape allegations

The officer who presided over the hearing prepared a report and recommendations for Miller. Under military law, Miller now decides whether to send the case to courts-martial.

However, Miller will not make any determination while the federal lawsuit is pending, a spokesman for the academy said.

The lawsuit, filed in mid-
September, argued that Miller should recuse himself from the case because of bias against the woman. The suit cited the grueling schedule of the Article 32, which Miller played a role in setting, and comments made by an academy spokesman at briefings given to returning midshipmen over the summer. The spokesman allegedly said he was angry that the case had consumed so much time and attention.

Susan Burke, an attorney for the woman, said that the spokesman’s comment was evidence that Miller was unhappy about the case’s impact on the academy’s reputation. Burke also argued that her client was being denied due process because Miller holds the power not only over whether to refer the case to a court-martial but also to set aside any resulting verdict if he doesn’t agree with it. She cited an Air Force case in which an officer was convicted of sexual assault by a military jury but the decision was overturned by a commanding officer.

Sen. Kirsten Gillibrand (D-N.Y.) and other lawmakers have been pushing for such cases to be taken away from the military chain of command, but so far without success.

Assistant U.S. Attorney Thomas Barnard, who represented Miller, argued that the woman did not have standing to ask the court to force the academy superintendent to recuse himself, nor did a civilian court have jurisdiction to interfere in an ongoing military investigation.

Hollander agreed. She said that the woman had other avenues of redress within the military justice system, including appealing to Miller’s superior, the chief of naval operations.

The judge also said that while there has been growing sensitivity to sexual assault victims, “I don’t know if that has risen to the level of a constitutional right.”

Despite the ruling, the case was not formally dismissed. Burke said she will seek other avenues of redress within the military and left open the possibility of returning to federal court if those avenues do not work out.

Annys Shin has been a staff writer at the Washington Post since 2004.
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