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47 Mids ask judge to halt honor probe

THE BALTIMORE SUN

WASHINGTON -- The class president and the co-captains of the football team are among 133 senior midshipmen implicated in the largest cheating scandal in the U.S. Naval Academy's 149-year history, papers filed in federal court yesterday revealed.

The three were among 47 midshipmen who asked a federal judge yesterday to block any disciplinary action by the academy, claiming that the investigation into the cheating scandal violated their constitutional rights.

As a result, Naval Academy officials have postponed the first hearings on the cases, slated to begin today before an officers' panel that has the power to recommend expulsion for any midshipman involved in the scandal.

Forty-seven of the seniors implicated, including class president Jason Berger and football co-captains Jason Van Matre and Javier Zuluaga, filed suit yesterday in U.S. District Court for the District of Columbia against Navy Secretary John H. Dalton and top Navy officials.

The midshipmen hope to block permanently the five-member disciplinary panel headed by Rear Adm. Richard C. Allen.

The lawsuit claims that Navy investigators questioning midshipmen violated their constitutional rights by ordering them to respond to questions under threat of court-martial and not giving them the choice of having an attorney present. It asks the federal court to prevent use of these "involuntary statements" by the Allen board or any other Navy officials.

A hearing has been set for Monday afternoon before U.S. District Judge Stanley S. Harris.

Charles W. Gittins, a lawyer who is handling the case for Williams & Connolly, the Washington, D.C., firm that filed the lawsuit, declined to comment yesterday.

Among those who filed the lawsuit are seven other football players: John Formoso, David E. Gwinn, Duncan N. Ingraham, Jr., Daniel Pidgeon, Lewis B. Sims and David B. Stowers. Others include wrestling captain Jeffrey Stepanic and a former company commander, James N. Sherrod.

Naval Academy officials referred comment to Navy officials in the Pentagon.

The cheating scandal involved an electrical engineering exam administered on Dec. 14, 1992, to 663 juniors. The master copy of the test vanished several days before the exam and quickly circulated through the academy's dormitory.

"The Navy has full confidence in the administrative processes set up to handle the case arising from the Inspector General's investigation of the EE311 exam compromise," Navy Lt. Cate Mueller said in a statement. "We are working with the U.S. Attorney for the District of Columbia to prepare formal arguments."

An initial probe last spring by the Naval Criminal Investigative Service resulted in 28 cases' being sent to midshipmen honor boards, which generally deal with cheating and other violations of the academy's strict honor code. Six were recommended for expulsion by academy officials.

But following news reports that not all the guilty were caught, Congress ordered the Navy's inspector general to open a new investigation. That seven-month probe ended last month, with a Navy IG report that implicated 133 midshipmen.

Not read their rights

The midshipmen, according to the four-count lawsuit, were not read their constitutional rights against self-incrimination or advised of their right to counsel before they were questioned by Navy IG investigators.

Investigators ordered the midshipmen to answer questions, threatening violators with court-martial, time in the U.S. military prison at Fort Leavenworth, Kan., and dismissal from the academy for remaining silent, according to the lawsuit. Each of the 47 midshipmen was compelled to make incriminating statements to comply with the orders, the lawsuit said.

The denial of constitutional rights "was expressly condoned and approved" by Mr. Dalton, Admiral Frank B. Kelso II, the chief of naval operations, and Rear Adm. Thomas C. Lynch, the Naval Academy's superintendent, according to the suit.

Navy officials "flat out decided the Constitution didn't apply," said a source familiar with the investigation, who requested anonymity.

The charges against the midshipmen center on the academy's honor concept, which states that "midshipmen are persons of integrity: they do not lie, cheat or steal." Navy officials have argued that since the honor process is "administrative" and not criminal, protections against self-incrimination do not apply.

The lawsuit also argues that Admiral Kelso violated federal law in setting up the Allen panel. The academy superintendent has exclusive authority to recommend the expulsion of a midshipman to the Navy secretary, the lawsuit contends.

Panel's history

The Allen panel was set up last month to replace the midshipmen-run honor boards that normally deal with violations of the honor code. Admiral Lynch requested the officers' panel after reading the Navy IG report, which said many midshipmen had no faith in the honor board process. The admiral explained the panel would ensure "fairness."

The panel can decide on punishment short of expulsion or DTC recommend that an accused midshipman be removed from the academy -- a punishment that would have to be decided by Navy Secretary Dalton.

Since the Allen panel bars lawyers for midshipmen from attending its hearings, that violates the right of due process under the Fifth Amendment, according to the lawsuit. Under the procedures of the Allen board, an accused midshipman can call a recess and confer with counsel outside the hearing room.

The lawsuit argues that the Allen panel and an earlier panel headed by retired Adm. Leon "Bud" Edney violated the midshipmen's right to administrative due process. The Edney panel decided, within a week and a half, how many of the 133 cases would be heard by the Allen panel, settling on roughly 100, according to sources familiar with the investigation.

The roughly 30 midshipmen remaining would receive penalties short of expulsion, according to sources.

Finally, the lawsuit argues that review of the 133 midshipmen files by Navy Secretary Dalton and his staff without notice to the midshipmen and a chance for them to be heard also violates their Fifth Amendment rights. The lawsuit claims -- without specific information -- that those officials already have decided, in advance of recommendations from the Allen panel, the outcomes of the "majority" of those cases to be considered by the Allen panel.

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