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Judge denies motion in Naval Academy sex assault case

Oct. 30, 2013 - 06:00AM   |  
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ANNAPOLIS, MD. — A federal judge has denied a request by a U.S. Naval Academy midshipman accused of sexual assault to recuse the academy’s superintendent from the case.

Defendant Josh Tate’s attorney, Jason Ehrenberg, said Wednesday he still hopes to prove undue command influence prompted the case to move forward to a court-martial because of a heightened focus on sexual assault in the military.

Ehrenberg filed a motion to intervene in a federal case brought by the alleged victim, whose attorneys also sought the recusal of the superintendent. Ehrenberg noted Vice Adm. Michael Miller, the superintendent, decided to move ahead with a court-martial, despite recommendations from an investigating officer and Miller’s own senior counsel not to do so.

“The hope is that we’ll prevail on the undue command influence motion, but we just need to see how the process plays out,” Ehrenberg said.

Ehrenberg sought to intervene in the federal case by contending the allegations have arisen in a “turbulent political environment” that is bound to make Miller biased. Susan Burke, the alleged victim’s attorney, also alleged that Miller demonstrated bias against her client.

In his court filing, Ehrenberg noted President Barack Obama’s comments in May stating those who commit sexual assault in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.” Defense lawyers in other cases have argued the president’s remarks amounted to unlawful command influence.

Miller decided this month that two of three students accused in the case should face a court-martial.

U.S. District Judge Ellen Hollander dismissed the alleged victim’s lawsuit to recuse the superintendent, after saying she could not find grounds to intervene. She issued an order last week saying Tate’s motion to intervene was denied, now that the case has been dismissed. Hollander said at a U.S. District Court hearing in Baltimore earlier this month she could not find precedent for a federal court to interfere with a pending investigation in military court.

Tate’s arraignment is scheduled for Nov. 4 at the Washington Navy Yard.

Meanwhile, a court-martial has been scheduled to begin for Midshipman Eric Graham on Jan. 27 at the Navy Yard, said Ronald Herrington, his attorney. While Graham did not enter a plea at his arraignment earlier this month, Herrington said his client will plead not guilty. The two men will face separate military trials.

Graham, of Eight Mile, Ala., is charged with abusive sexual contact. Tate, of Nashville, Tenn., is charged with aggravated sexual assault. Both also are charged with making a false statement.

The case stems from an off-campus party in Annapolis in April 2012 in a house that was used by football players. Graham and Tate are former members of the team.

The alleged victim in the case initially did not want to pursue charges and testified at a hearing in military court that she has no memory of being assaulted on a night of heavy drinking. She also testified that she heard secondhand that she had sex with several people at the party.

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