ANNAPOLIS, Md. (AP) — A lawyer for a U.S. Naval Academy student accused of sexual assault is asking a federal judge to remove the school’s superintendent from the case out of concern he could be biased from political pressure due to the heightened focus on the sexual assault problem in the military.
Jason Ehrenberg, an attorney for Midshipman Josh Tate, wrote in a court filing submitted Tuesday night that a bias on the part of Vice Adm. Michael Miller could affect how he chooses who will serve on a court-martial panel that will decide his client’s guilt or innocence. Ehrenberg noted that the superintendent decided to refer the case to a court-martial despite recommendations from an investigating officer and Miller’s own senior counsel not to do so after an Article 32 hearing. The hearing resembles a preliminary hearing in civilian court.
Ehrenberg wrote that the allegations against Tate “arise within a turbulent political environment,” because the military has been under a spotlight concerning its alleged treatment of sexual assault cases. Ehrenberg also cited comments made by President Barack Obama at the academy’s graduation in May emphasizing the importance of stamping out sexual assault.
“The political pressure concerning sexual assaults in the military is relentless,” Ehrenberg wrote. “Any senior military official who is required to have Senate approval for advancement, such as the superintendent here (a flag officer,) necessarily finds themselves in a political bind.”
Academy spokesman Cmdr. John Schofield declined to comment on ongoing legal proceedings.
Meanwhile, Eric Graham, a second midshipman who has been referred to a court-martial by the superintendent, had an arraignment at the Washington Navy Yard on Wednesday. The academy said Graham’s lawyers reserved all pleas and motions.
Graham’s lawyer, Ronald Herrington, said he will plead not guilty to all charges, including abusive sexual contact and making a false statement. Herrington also expressed concern about the superintendent’s role in the court-martial process.
“We are concerned that Vice Adm. Miller has effectively rejected the Article 32 process, and in doing so we agree that he has revealed that he can be influenced and apparently can’t handle the truth,” Herrington said in an interview. “However, we are still contemplating what appropriate motions to make and will do so in the proper court at the proper time.”
The academy said Tate’s arraignment is scheduled for Nov. 4. No date has been set for the court-martial of either of the accused.
Ehrenberg filed the motion to intervene as part of a lawsuit brought by the alleged victim’s lawyer, who also sought Miller’s recusal from the case. Susan Burke, the alleged victim’s attorney, contended Miller was biased against her client for daring to blow the whistle publicly.
Last week, U.S. District Judge Ellen Hollander said she could not find grounds for a federal court to interfere with a pending investigation in military court, but the case remains open.
After the judge declined to intervene last week, Miller referred two of three students who were accused in the case to face general courts-martial. Tate, of Nashville, Tenn., is charged with aggravated sexual assault. Graham, of Eight Mile, Ala., is charged with abusive sexual contact. The superintendent decided not to order Midshipman Tra’ves Bush, of Johnston, S.C., to face a court-martial. He was charged with aggravated sexual assault.
The students are former Navy football players. The case stems from an off-campus party in Annapolis in April 2012 at a house that was used by members of the football team. The woman in the case initially did not want to pursue charges. The alleged victim, also a midshipman, had been drinking heavily on the night of the party. She testified she had no memory of being assaulted and heard secondhand that she had sex with several people at the party.
Ehrenberg also noted in court documents filed Tuesday night that the woman testified that she did not consider any of the accused to be “criminals.”