By Pamela Wood, The Baltimore Sun
5:43 PM EDT, September 29, 2013
The Navy on Friday defended its policy of having commanders determine whether criminal cases go to trial, as it responded to a request to have that authority stripped from the current Naval Academy superintendent.
Vice Adm. Michael H. Miller, the academy superintendent, is weighing whether to court martial three male midshipmen. All are former football players accused of sexual assault against a female classmate at an off-campus party in 2012.
Susan Burke, a Baltimore-based attorney for the alleged victim, filed the suit against the Navy in federal court, claiming Miller is biased because he doesn't want to harm the reputation of the academy or the football team. Burke claims Miller did nothing to limit the 20-plus hours of questioning of her client, which included graphic questions about her sexual past.
Burke asked a federal judge to strip Miller of his authority to decide, and is seeking an injunction to have him removed while the lawsuit goes forward.
In the court papers filed Friday, U.S. Attorney Rod J. Rosenstein, representing the Naval Academy, said federal courts lack jurisdiction to intervene in the military justice system. He also argued denying the injunction would do no harm to the alleged victim as the lawsuit is decided.
A hearing on the injunction request is scheduled for Oct. 7.
The midshipmen were subject to an Article 32, or evidentiary, hearing in the military justice system. Over eight days, a hearing officer listened to witnesses and arguments from prosecutors and defense attorneys about the case.
The hearing officer will recommend to Miller whether he should drop the case, punish the midshipmen administratively or proceed with a court martial. Miller is not bound to follow the recommendation.
Spurred by the Naval Academy case, victim advocates and some congressmen are pushing for changes in the military justice system.
Last week, U.S. Sen. Barbara Boxer of California, Sen. Richard Blumenthal of Connecticut and Rep. Jackie Speier of California wrote to President Barack Obama urging him to support changing the Article 32 hearing process.
"We were shocked and alarmed to learn that Article 32 allows sexual assault victims to be questioned in a manner that is intimidating and degrading, and that we believe has had a major chilling effect on sexual assault reporting," they wrote.
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