- Associated Press - Wednesday, November 13, 2013

ANNAPOLIS — Military prosecutors have the “difficult, if not impossible,” task of proving two former U.S. Naval Academy football players sexually assaulted a midshipman because the woman’s contradictory and misleading testimony damaged her credibility, according to an investigating officer’s report obtained by The Associated Press.

The case is further complicated by the failure of naval investigators to read one of the men his rights before he admitted engaging in a sex act with the woman, the officer wrote in recommending the cases not be brought to courts-martial.

Despite the recommendation, Vice Adm. Michael Miller, the academy superintendent, decided last month to court-martial Midshipmen Josh Tate and Eric Graham in the case involving an intoxicated classmate at an off-campus party. Miller decided not to court-martial a third student accused of sexual assault, Midshipman Tra’ves Bush.

The case is drawing heightened attention as Congress, the White House and the Pentagon are focusing on stamping out sexual assault in the military and a rise in reported assaults. Meanwhile, lawmakers are considering legislation that would remove commanders, including superintendents at the nation’s military academies, from the process of deciding whether serious crimes like sexual misconduct cases go to trial.

The alleged victim in the Naval Academy case has said she was drinking and does not remember having sex with the men at the April 2012 party but heard about it later from others. Proving that the woman was incapacitated and unable to consent to sex is key to proving the government’s case. Defense attorneys have said there is no evidence the woman was forced to have sex.

“As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing,” Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.

Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.

“There is no effort to get a win here — none,” Burke said.

Burke said she was not provided a copy of the investigating officer’s report, despite requesting it. She also said she has concerns about how investigators handled the case.

The Article 32 hearing was held in late August and early September to help determine whether the men would face a court-martial. Tate, of Nashville, Tenn., is charged with aggravated sexual assault. Graham, of Eight Mile, Ala., is charged with abusive sexual contact.

A Naval Academy spokesman has said previously that the decision to move forward with a court-martial is based on whether the superintendent finds evidence of a crime, not on the likelihood of a guilty verdict. A spokesman for the academy, Cmdr. John Schofield, declined to comment on the report Wednesday because it was part of ongoing courts-martial.

Still, prosecutors in the case will need to be able to explain inconsistencies in the woman’s testimony to get a conviction, said Philip Cave, a retired Navy judge advocate who is now a private defense attorney in military law.

“It is an overall credibility issue, some of which the prosecutor probably could take the sting out of if they’re good enough,” Cave said. “Others, they may not be able to,” he added, referring to the number of inconsistencies highlighted in the report.

Ronald Herrington, an attorney for Graham, said he believes the investigative officer’s report shows that political pressure surrounding the problem of sexual assault in the military has driven the case forward when it should have been dismissed.

“That IO report was a pretty extensive effort to get to the truth — the most exhaustive effort that I’ve ever seen in that regard — and at the end of the day it was clear that the case should be dismissed,” Herrington said.

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