As government attorneys, and sometimes the defense, questioned a potential member for an eight-member panel, they almost always turned to one question.
“Do you believe women who say they have been sexually assaulted?”
Asking the question made sense. The attorneys were questioning each potential member to see if they could sit on the member panel — the court-martial version of a jury — in the trial of Midshipman 3rd Class Nixon Keago.
Keago is charged with sexual assault, attempted sexual assault, obstruction of justice and burglary.
In addition to the pandemic, the case comes in the middle of two social movements: Black Lives Matter and the military’s own #MeToo movement.
As part of the COVID-19 mitigation, each potential member filled out a supplemental survey a few days ago before member selection.
The question about believing women was on the questionnaire, with almost everyone answering affirmatively. That sparked the government, Lt. Cmdr. Paul LaPlante, Lt. Cmdr. Chris Cox or Lt. Josh Won, to further question each potential member.
Almost all responded the same way. If a woman approached them and said she had been sexually assaulted, they would believe her. But in the courtroom, listening to the trial, they believe Keago is innocent until proven guilty and they would need evidence to determine if a woman was sexually assaulted.
A few elaborated by discussing the #MeToo movement, which started about three years ago and addresses the amount of sexual harassment and assault faced by women.
All said they could still give Keago a fair trial despite their beliefs about sexual assault.
The other social movement hovering over the trial is Black Lives Matter.
The movement was established in 2013 after George Zimmerman was acquitted in the death of Florida teen Trayvon Martin. It recently captured renewed national attention after police officers killed George Floyd, prompting weeks of protests against police brutality.
Keago is Black.
During a pretrial hearing last week, both the government and defense attorneys asked for questions of race and bias on the supplemental questionnaire.
The defense, Lt. Dan Phipps and Lt. Cmdr. Andrea Kissner, had concerns about questions on the Black Lives Matter movement on the questionnaire, including if a person would be concerned if a guilty conviction in this case would be detrimental to Black Lives Matter.
Phipps and Kissner also wanted open-ended questions about racial bias. Judge Capt. Aaron Rugh said a question on the questionnaire asking is if the potential member believed Black men committed sexual assault more than white men would be sufficient.
Racial bias was only brought up once during government or defense questioning.
Won, when questioning a Black potential member, asked questions about police profiling on race after the man said he had a negative experience with police.
The government attorney than asked if racial bias extends to the Naval Criminal Investigative Service, but the man did not know.
The man also had a friend, who is Black, falsely accused of stealing a wallet.That affected the potential member’s perception of law enforcement, he said.
One potential member, who works in the Naval Academy’s diversity office, brought up racial injustice as a pressure in the case.
The potential member said given the racial bias in the criminal justice system, he would need to find a balance between making sure he did not wrongly convict someone, while also making sure victims feel justified.
The potential member also mentioned the history of white women lying, sometimes in groups, about sexual assault by a Black man.
It is unclear if race will be a factor in the trial. The defense requested a copy of the demographics, including race and gender, of non-commissioned officers from the Naval Academy, Phipps said during a pretrial hearing.
Keago is innocent until proven guilty, and several potential members were questioned on their understanding of this part of the law.
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Most answered that Keago is currently innocent, in accordance with the law, although some said they could not determine innocence without evidence. All understood that the law dictates his innocence unless his guilty is proven beyond reasonable doubt.
But one answer stood out, delivered by the last potential member questioned.
“That is a presumption, sir, not a fact,” the person said.
By the end of the two days, the government and defense questioned 19 people. Eight of those questioned will be selected for the panel.
Despite Keago’s race, only one of the 19 potential members — four women and 15 men — was Black.