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Bias alleged in Naval Academy case

Oct. 16, 2013 - 08:38PM   |  
Midshipmen Eric Graham and Josh Tate will face court-martial in an alleged 2012 off-campus sexual assault. A third midshipman who went through Article 32 proceedings alongside Graham and Tate will not.
Midshipmen Eric Graham and Josh Tate will face court-martial in an alleged 2012 off-campus sexual assault. A third midshipman who went through Article 32 proceedings alongside Graham and Tate will not. (Navy)
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A lawyer for a U.S. Naval Academy student accused of sexual assault is asking a federal judge to remove the superintendent from deciding who will serve on a court-martial panel that will decide the case.

Jason Ehrenberg, an attorney for Midshipman Josh Tate, wrote in a court filing submitted Tuesday night that Vice Adm. Michael Miller 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.

Ehrenberg noted 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 Obama at the academy’s graduation in May emphasizing the importance of stamping out sexual assault.

“The superintendent’s actual bias is evidenced by his referral of the criminal action to a general court-martial over the recommendation of the Article 32 investigating officer not to do so, and over the objection of the superintendent’s own senior counsel,” Ehrenberg wrote, referring to the officer who presided over the hearing that ended last month to help determine whether the case moved forward to a court-martial.

Cmdr. John Schofield, a spokesman for the academy, declined to comment on ongoing legal proceedings.

Ehrenberg filed the motion to intervene as part of a lawsuit brought by the alleged victim’s lawyer, who also sought Miller’s recusal. 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.

Last week, after the judge declined to intervene, Miller referred two of three students to face general courts-martial. Tate, of Nashville, Tenn., is charged with aggravated sexual assault. Midshipman Eric 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 and 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 alleged victim testified that she did not consider any of the accused to be “criminals.”

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