The judge presiding over the sexual assault trial of a former Navy football player sent the jury pool home Friday after the defendant asked the judge to decide the case instead.
Jury selection in the court-martial of Midshipman Joshua Tate of Nashville was scheduled to begin Friday morning at the Washington Navy Yard. But before potential jurors entered the courtroom, Jason Ehrenberg, an attorney for Tate, told the judge, Col. Daniel Daugherty, that Tate had had “a change of heart” and no longer wished to have a jury hear the case.
Prosecutors then asked Daugherty if he could be impartial, Ehrenberg said. The judge said he would be able to set aside any evidence he had already seen and make a judgment based on what is presented at trial.
Ehrenberg later said the switch to a bench trial was prompted by what he described as the prosecution’s attempt to “mislead” potential jurors about what constitutes sexual assault.
Tate is accused of sexually assaulting a woman who is a midshipman at the U.S. Naval Academy in Annapolis. The case hinges on whether the woman was too intoxicated to consent to sexual activity that occurred in a car parked outside an off-campus party in April 2012.
She has testified that she was drinking heavily that night and remembers few details. She said she learned that she had sexual encounters with more than one man from friends and social media in the days after the party. The Washington Post generally does not identify alleged victims of sexual assault.
Ehrenberg said questions prosecutors had prepared for potential jurors raised concerns that the government was trying to “mislead” jurors about the legal standard for “substantial incapacitation.” Being intoxicated does not automatically mean that a person is incapacitated, and the defense feared that such distinctions would be lost on jurors.
“The judge presumably will have less of a chance of getting confused,” Ehrenberg said.
The dismissal of the jury is the latest unexpected twist in a nearly year-long case that has roiled the Naval Academy and has become a closely watched case study of the military’s response to sexual assault allegations.
Since the accuser made her allegations public last year, Congress has changed the way such cases are handled, such as preventing commanders from overturning jury verdicts. But Tate will be tried under the old law because he was ordered to stand trial before the new law took effect.
Ehrenberg said defense attorneys felt that Daugherty was preferable to a jury even though he had ruled against them in recent months. “He has issued rulings we have not enjoyed,” Ehrenberg said. “But legally, he was within his rights to do so.”
If convicted, Tate could face more than 30 years in prison and a dishonorable discharge, among other penalties. He is one of three former Navy football players initially charged in the case. Charges against Eric Graham of Eight Mile, Ala., and Tra’ves Bush of Johnston, S.C., were dropped.
Opening statements are scheduled for Monday morning.