Midshipman accused of sexual assault joins call for superintendent to recuse himself

AP Photo/Matt Rourke, File

Superintendent of the United States Naval Academy, Vice Admiral Michael H. Miller,
seen in December 2012.

By Ali Weinberg and Elizabeth Chuck, NBC News

Lawyers for a Naval Academy midshipman facing court-martial on sexual assault accusations have joined a lawsuit — filed by the accuser — to have the Naval Academy superintendent overseeing the case recuse himself.

Counsel for Midshipman Josh Tate, one of the two midshipmen referred to court-martial in an alleged rape case, filed a motion to intervene on an existing lawsuit. The suit, filed by the accuser in the case, requests that Vice Adm. Michael Miller step aside from the proceedings. 

Susan Burke, the accuser's lawyer, filed the suit in early September because she said Miller would be biased against his client in determining whether to refer the men she accused of raping her to court-martial. Burke said Miller was actively intending to retaliate against her client for harming the Naval Academy. 

But now, Tate's lawyers are filing a motion to intervene in the case, which would legally associate themselves as agreeing with the accuser in the lawsuit to get Miller to recuse himself.

"Plaintiff seeks a court order directing the Superintendent to recuse himself from serving as the convening authority in the pending criminal action because 'the probability of actual bias on his part is too high to be constitutionally tolerable.' Intervenor [Tate] seeks the same relief," the motion reads. 

In their motion, filed on Tuesday, the lawyers noted that even though Miller has already made his decision on the court-martial, he still has significant influence in the court-martial, given that he will be able to choose the jury pool.

"The Superintendent’s bias impacts more than just the decision to refer charges to a general court-martial – it impacts the fundamental fairness of the general court-martial itself," the motion read.

Miller recommended last Thursday that two of the three midshipmen accused of raping the female midshipman face court-martial, despite the recommendation of the judge in a preliminary hearing, who said none of the three men should be prosecuted. 

Lawyers for Tate argued in Tuesday's motion that Miller was acting in a time of "relentless" political pressure. 

"It is important to note that the allegations against Intervenor [Tate] unfortunately arise within a turbulent political environment. Currently, the United States Armed Forces are in a well-reported spotlight concerning their alleged treatment of sexual assaults. The political pressure concerning sexual assaults in the military is relentless," the motion said.

"It is not unreasonable to believe that a politically, but not legally, appropriate thing to do would be to subject a young man to an unwarranted prosecution and jeopardy under the assumption that the accused would likely be acquitted."

Tate, Eric Graham and Tra’ves Bush, each a former member of the Academy's football team, are accused of raping the woman after she passed out drunk at a party at an off-campus residence on April 14, 2012. 

Chip Herrington, counsel for Graham — the other midshipman facing court-martial — said he is "supportive" of Tate's lawyers' course of action and is "contemplating similar motions." 

Herrington said he agreed that Miller lost credibility when he recommended the two Midshipmen face court martial against the investigating officer’s suggestion. 

"It is clear that Vice Admiral Miller simply can’t handle the truth shown by his rejection of the judge’s findings in the Article 32 hearing," Herrington said. 

The case is one of the highest-profile military sexual assault cases since President Barack Obama made his first public condemnation of such actions at the Naval Academy’s commencement ceremony in May.

The results of this case, and others like it, may have policy implications for how the military deals with reports of sexual assault, which have increased exponentially in recent years. A Pentagon study estimated that unwanted sexual contact in the military jumped by 37 percent in 2012 to 26,000 cases.

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This story was originally published on Wed Oct 16, 2013 11:24 AM EDT

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