July, 24, 2013 file photos provided by the U.S. Navy Football team, show Midshipman Eric Graham,left, and Midshipman Josh Tate. (AP Photo/U.S. Navy Football team, File)
by Brian Witte
Associated Press Writer
ANNAPOLIS, Md. (AP) — Two U.S. Naval Academy midshipmen will face courts-martial in an alleged sexual assault at an off-campus party while a third will not, the academy’s superintendent decided on Thursday. All three midshipmen were former Navy football players.
Vice Adm. Michael Miller referred Midshipmen Eric Graham and Joshua Tate for courts-martial even though attorneys for the men said a military judge recommended none of the cases should move forward.
Graham, of Eight Mile, Ala., is charged with abusive sexual contact. Tate, of Nashville, Tenn., is charged with aggravated sexual assault. Both also are accused of making false statements.
Midshipman Tra’ves Bush, of Johnston, S.C., who had been charged with aggravated sexual assault, will not face trial.
The alleged victim, a fellow midshipman who was drinking at the April 2012 party, has said she doesn’t remember much about the night, and only heard about the sexual encounters later from other people.
She initially did not want to pursue charges and even asked one of the defendants not to cooperate with investigators in the days following the party, according a phone recording played at a preliminary hearing last month.
The academy did not provide details about why Bush wouldn’t face trial. The alleged victim testified at the hearing that they had consensual sex before the night of the party. Her attorney also said testimony from witnesses about the alleged victim’s level of intoxication did not come across strongly enough during her encounter with Bush earlier in the evening of the party.
The Associated Press generally does not name alleged victims of sexual assault.
The case has drawn considerable attention at a time when the White House, Congress and the Pentagon are focusing on sexual assaults in the military.
Attorneys for the midshipmen who will face courts-martial said Cmdr. Robert Monahan, who presided over the hearing, recommended the charges be dismissed.
“Obviously, we are disappointed that Vice Adm. Miller has chosen to disregard the recommendations, and we believe it’s most likely the result of public pressure,” said Ronald Herrington, Graham’s lawyer. “However, we believe we have the truth on our side, and we look forward to having the opportunity to show that Midshipman Eric Graham is not guilty of a crime.”
Jason Ehrenberg, an attorney for Tate, said he was disappointed, but they are confident Tate will be cleared.
Andrew Weinstein, Bush’s attorney, said the allegations against his client were unsubstantiated.
“Midshipman Bush is a young man who has committed his life to the protection of our country and, with these criminal charges now behind him, he looks forward to continuing his loyal and devoted service,” Weinstein said.
Academy spokesman Cmdr. John Schofield said Miller’s obligation was to review the findings and recommendations, and ultimately it’s up to him.
“The convening authority decision is not based on the probability of a successful prosecution,” Schofield said. “Rather, it is the convening authority’s responsibility to independently evaluate evidence and determine if reasonable grounds exist that a crime has been committed by the accused.”
Monahan’s report is not a public record until the case is concluded, Schofield said.
Susan Burke, an attorney for the alleged victim, said she was pleased and reiterated her criticism of how the military justice system handles sexual assault cases.
During the Article 32 hearing that ended last month, Burke said her client was subjected to abusive badgering from defense teams for long hours. The alleged victim said multiple times during the eight-day hearing that she was too tired to continue testifying, and her testimony was delayed at times.
Burke sued in federal court seeking to remove Miller from deciding whether the case would move forward, but a federal judge this week found no grounds to intervene.
“We continue to believe that Congress needs to overhaul the military justice system,” Burke said. “It is clear that the abusive Article 32 process needs to be fixed.”
In May, President Barack Obama emphasized the importance of stamping out sexual assault during his speech to this year’s graduating class.
Burke, an outspoken lawyer who has represented more than 200 sexual assault victims, has said the academy tried to sweep the case under the rug to protect its reputation. The academy and an NCIS agent have said an investigation was vigorously pursued.