A midshipman guilty of sexual assault plans to appeal his conviction as his family looks to sue the Naval Academy over what they say is unfair pretrial treatment and jury selection.
A seven-member panel found Midshipman Nixon Keago guilty of sexual assault, attempted sexual assault, obstruction of justice and burglary. The panel found him not guilty of one charge of attempted sexual assault, with the judge also finding him not guilty of a second charge of attempted sexual assault.
The panel, the military’s equivalent to a jury, sentenced Keago to 25 years confinement and dismissed him from the service on Friday.
Keago, a Black man, plans to appeal his conviction, citing the all-white member panel and inconsistencies with testimony that were not challenged by the government, said Nancy Moraa, Keago’s sister.
Keago’s family also plans to file a civil lawsuit against the Naval Academy over issues with the member selection and pretrial treatment of Keago while he was held in the City of Alexandria’s jail. They also allege maltreatment while in custody including a 14-day stay in a receiving area and constant illumination preventing sleep. Government officials said the alleged misconduct were policy changes due to COVID-19 protections.
Moraa and Keago’s family has not filed a lawsuit against the academy, as of 1 p.m. Saturday. It is unclear if Keago has filed his appeal.
Keago was convicted of sexually assaulting two women and attempting to sexually assault the third. In all three cases, the women, who were midshipmen at the time, woke up to Keago attempting to or sexually assaulting them.
Keago claims two of the incidents were consensual, the same story used by his defense attorneys.
With one of the midshipmen, Keago claims that he went to check on her after he noticed she was drunk, according to a letter sent to The Capital by Moraa.
Keago’s claims vary drastically from the woman’s testimony during his court-martial. The midshipman told the court that she woke up to Keago in her bed, sexually assaulting her. She pushed him off of her and ran out of her room, telling a midshipman on watch that Keago sexually assaulted her.
In arguing for a 40-year period of confinement, Lt. Cmdr. Chris Cox told members that they needed to stop Keago from being able to sexually assault another woman.
Unlike a civilian court, potential members are not found using the voter registry. Instead, Superintendent Vice Adm. Sean Buck, as the head of the academy, is the convening authority, which means he is in charge of selecting the potential members, the military equivalent of jurors.
Some convening authorities may pick potential members in advance, said retired Maj. Gen. John Altenburg, Jr.,who served as an Army Judge Advocate General officer under a convening authority. The convening authority he served under would call potential members for a four-month period.
Some would be called for a trial. Others would serve the four-month period without ever being called, Altenburg said. Like with civilian court, military cases can go to a judge instead of a jury. They can also end in a plea.
But not all convening authorities will pick members ahead of knowing there is a court-martial, said military expert Eugene Fidell.
Even those who do will likely have to amend the selection before the trial, he said.
When selecting potential members, the convening authority has to follow six criteria, according to the Uniform Code of Military Justice.
The six criteria are education, training, experience, length of service, age and judicial temperament, according to the UCMJ.
Race and gender are not part of the criteria, Altenburg said, although they can be considered.
In the case of a Black defendant, the convening authority can make sure there is not a “lily-white” jury, Fidell said.
Keago, in a letter sent to The Capital by his sister, focused on the all-white panel, as well as the fact that they outranked him.
Members who sit on a panel must be a higher rank than the defendant, according to the UCMJ. There are circumstances where members may be of lower rank, but the situation should be avoided.
Race and gender can also be considered during a process called voir dire, or questioning. Both sides will question potential members and then can challenge those they feel cannot be fair and objective.
In Keago’s trial, the only Black potential member was challenged by the defense. There should have been more than one potential member that was Black, Moraa said.
Keago was always going to be found guilty because he is a Black man before an all-white member panel, Moraa said.
How could they not find Keago guilty, she said.
“You already know like my brother did not even have a shot to have his story heard because you’re dealing with fathers and you’re dealing with white fathers,” Moraa said. “Not that I’m saying they’re racially biased, but there’s a very big chance that [the member panel] was.”
Of the three women victimized by Keago, only one was white. The Capital reached out to representatives of the three women for comment but did not receive a response.
People should believe women, Moraa said. She would want people to believe her. But in a trial, the Black male defendant is seen differently than a Black female victim, she said. She is seen as a woman first. He is seen as Black first.
Questions about race, as well as a history of sexual assault, were asked through a questionnaire given to potential members before jury questioning. These questions were drawn up by the government and defense attorney and approved by the judge.
During Keago’s jury selection, the attorneys focused mainly on sexual assault history, asking about knowing someone who had been sexually assaulted or charged with crimes similar to Keago’s, among other questions.
Race only came up with two potential members, including the only Black potential member. Both raised concerns about how Black men have been treated by the law.
Neither were selected for the members panel. The defense attorney’s challenge did include at least one of those potential members.
The Evening Sun
People can appeal based on an all-white member’s panel, Altenburg said. That does not mean it will be successful. He compared it to suing someone. A lawyer may agree to take on a lawsuit, but just because someone can sue, does not mean they will win.