A sexual-assault trial of a former Navy football player will go forward next month after defense attorneys failed to persuade a military judge to dismiss the case.
The judge, Col. Daniel Daugherty, has yet to issue a formal decision, but he outlined his views Monday to attorneys for midshipman Joshua Tate of Nashville and to lawyers for the alleged victim. Tate’s attorneys sought dismissal, claiming a lack of evidence in the case as well as bias on the part of the U.S. Naval Academy superintendent, who wields broad authority over the matter.
Earlier this month, the case against Tate looked as if it might fall apart after one of the former defendants turned prosecution witness and cast doubt on the central allegation: that the accuser was too drunk to consent to sexual activity.
Eric Graham of Eight Mile, Ala., was initially charged with Tate and a third former teammate, Tra’ves Bush of Johnston, S.C., last spring with sexually assaulting the woman at an April 2012 off-campus party. Charges against Bush and Graham were later dropped, and prosecutors granted Graham immunity in exchange for his deposition.
Graham’s testimony is potentially important because he interacted with the accuser about the same time Tate did.
The alleged assault took place in a car parked outside a “toga and yoga” house party. Graham said in his deposition that Tate got out of the car and told him that the woman wanted to speak with him. Graham got into the car, where he had a sexual encounter with her, he testified. He said that although she appeared to have been drinking, she was able to communicate, to move and to make decisions.
The case has become a closely watched bellwether of the way the military handles reports of sexual assault within its ranks. Scrutiny of the case was so great, Tate’s attorneys argued, that Naval Academy Superintendent Michael H. Miller had little choice but to refer the case to trial against the recommendations of his in-house legal adviser and another military judge, who reviewed extensive evidence in the case.
Under military law, Miller has the power to levy charges, refer a case to trial and choose the pool from which the jury is selected. (Reforms passed by Congress late last year curtailed some of that authority, but those changes won’t apply in this case because it was referred to trial before the law passed. A separate proposal to remove sexual-assault cases from the military chain of command is expected to be taken up in the Senate next month.)
Daugherty also rejected the allegations that the case was tainted by unlawful command influence and that Miller chose to send the case to trial because of political pressure. But Daugherty said that the jury could be chosen from a command other than the Naval Academy.
The accused woman, who attends the U.S. Naval Academy, testified at a preliminary proceeding last year that she had been drinking heavily the night of the party and that she remembers little of what happened. She said she found out from friends and social media days later that she had had sex with multiple men at the party. (The Washington Post, as rule, does not identify alleged victims of sexual assault.)
Tate, if convicted, faces more than 30 years in prison and dishonorable discharge, among other possible punishments, said his attorney, Jason Ehrenberg. The court-martial is scheduled to begin March 14 at the Washington Navy Yard.