A Mistake I Won’t Repeat – in Military Justice

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I broke one of the most sacred rules of military criminal defense: Don’t evaluate a case (or especially the man) based solely on the government’s investigation and case file.

As I reviewed an allegation about a year and a half ago, the government’s case file, and especially the photographs of bruising injury, I worried for my client. And I did what I never do. I reached out to ask the government what would be their best offer if my client pleaded guilty. They told me seven years. For a man facing life in prison for what is one of the most heinous alleged crimes a seven-year cap seemed a gift.

I called my client and I explained to him that if the jury believes he committed a forcible rape by strangulation of a woman he found on Tinder, he would realistically face decades in prison. I assessed his case, explained the government’s offer, and told him how scared I was for him.

Through tears, he told me that it did not matter what he was facing; he could not plead guilty to something he had not done.  Thank heaven for his resolve.

We began to peel back the layers of the allegation to reveal the inconsistencies, implausibility, and significant motivation to fabricate.

When I went off to Wyoming this past July, I “took with me” this case. Because of how worried I was for him. The photographs of the injuries worried me more than any other piece of evidence ever had.

As we worked through the file, I noticed that military law enforcement had all but skirted around what I believe to be the most crucial interview in any sexual assault claim: the outcry witness.

There were two sentences in a report. No sworn statement, and no recorded interview. A mere two sentences that validated there had been contact between the accuser and her spouse. The accuser’s recorded statement to law enforcement gave the impression of a “middle of the night / 9-11” type call to her spouse about this supposed forcible rape. The fact that there were two sentences of a synopsis of a law enforcement contact with the spouse tells me there was more there.

We began to attempt to interview the outcry witness: the accuser’s husband. He is a military Officer and dodged my calls for weeks. I requested that my military co-counsel to make efforts, believing the military status might mean something to this Officer. It did not. After ignoring our repeated phone calls and voicemails, we decided it was time to engage with his military superiors. He called my co-counsel back and screamed at her. Her colleague in the defense office wanted to intervene, but we preferred to let him do his worst; it would make better fodder for the eventual cross-examination we knew would come.

Finally he submitted to a telephonic interview (from my hotel room in Jackson, Wyoming on a rare day off from the Ranch). Four and a half hours later, we had learned a number of key facts. First, there had been no in the middle of the night outcry to the husband. He spoke to her the next morning on a regularly scheduled Face Time call (he was on temporary duty in Arizona). Second, the injuries he claimed to have seen were not anywhere close to the injuries she presented with several hours later at the hospital. Third, the version of events that she gave to the husband was completely inconsistent with what she had told law enforcement (that fish had gotten waaaaaay bigger). Fourth, whatever she described to him was not readily or apparent criminal misconduct because his stated response to her was “well, I wasn’t there so I cannot really tell you whether you should report or not.” Because, wow, supportive husband. He explained during this interview that he encouraged his wife to speak to her best gal pal to get her take on whether or not she should report. . Fifth, we learned that the complainant’s fourth husband (witness was fifth) was a man I served with in the Army and knew well. This was a huge investigative lead.

Our next interview was to the woman that the husband had told the accuser to contact to get advice about whether or not to report at all. I figured it would be rather nondescript – just a friend that told the accuser she should get medical treatment. What we found instead would mean the difference between a guilty verdict and proving the client’s innocence. The friend explained that the accuser had a sexual partner that had been “choking her” but the accuser became concerned when he left marks on her. This sexual partner was part of an on-going relationship and the markings from strangulation occurred weeks if not months before her one-night encounter with my client. The friend encouraged the accuser to have a straightforward discussion with her partner, and the accuser, she said, seemed open to it. The accuser never called her friend to ask about reporting. The accuser did speak with her friend about 2 weeks after she left the hospital for injuries she attributed to my client. In that discussion, the accuser told the friend that she had a discussion with her partner but that he had not listened, he got carried away, and strangled her to the point where she passed out and when she came to, he had left the house. According to what the accuser told her friend, when she awakened, she got herself up and went immediately to the hospital where, according to the friend the accuser is diagnosed with a “crushed windpipe.” None of this happened, and bore little resemblance to the report she gave to law enforcement.

The friend also shared with us that the accuser was part of a forced “open marriage”, that her husband expected her to hook up with strange men and then report back the details. If she declined, he would divorce her. He was her fifth husband, and they share three children. Makes for a powerful reason to stage a rape (the threat of divorce if non-compliant with open marriage) or test his resolve. Maybe, just maybe he would tell her she did not need to keep up her extra-marital relations. Maybe, she would be enough for him.

Military Rule of Evidence 412 permitted us to present evidence of an alternative source of injury: the prior lover.

A closer look at the bruising showed that the injuries were not acute, meaning they were older than 24 hours from the time they had been captured by the sexual assault nurse examiner.

There were after the fact text messages that told two different aspects of the same tale. Approximately two weeks after their one and only sexual encounter, my client texted the accuser (who had not yet filed any complaint) to see about getting together again. Her response? “Well, hello stranger.” Because that’s what you respond to a man who forcibly raped you by strangulation. Then “You call too late.” Which necessarily invites an earlier call and a different result.  After a few more text messages another night, he becomes frustrated and texts “don’t be that bitch.” Within hours, the accuser goes to law enforcement to report a rape by strangulation.

Law enforcement encouraged pretext text messages to see if my client would make admissions. He apologized in the messages for “getting carried away” and the government thought they had a slam-dunk given the physical injuries they were attributing to the client. They were wrong. And I had been wrong too. The government’s mistake had been the same one that I had committed; they looked at the file and they looked no further. They did not dig, they did not examine, and they did not question.

I am grateful that my client showed immeasurable courage. He knew he was innocent. So we went to work to prove it. And we did.

I won’t repeat my mistake, but I am counting on the fact that the government will again.

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