Wednesday, November 27, 2013
Wishing you and yours a very Happy Thanksgiving! To all the American military families out there, particularly those separated from each other due to military service, a very special thank you. In the words of USMC Father Dennis Edward O'Brien:
It is the soldier,
not the reporter,
who has given us freedom of the press.
It is the soldier,
not the poet,
who has given us freedom of speech.
It is the soldier,
not the campus organizer,
who has given us the freedom to demonstrate.
It is the soldier,
not the lawyer,
who has given us the right to a fair trial.
It is the soldier,
who salutes the flag,
who serves under the flag,
and whose coffin is draped by the flag,
who allows the protesters to burn the flag.
Pilgrim Edward Winslow describes the first Thanksgiving in 1621:
Our harvest being gotten in, our governor sent four men on fowling, that so we might after a special manner rejoice together after we had gathered the fruits of our labor. They four in one day killed as much fowl as, with a little help beside, served the company almost a week. At which time, amongst other recreations, we exercised our arms, many of the Indians coming amongst us, and among the rest their greatest king Massasoit, with some ninety men, whom for three days we entertained and feasted, and they went out and killed five deer, which we brought to the plantation and bestowed on our governor, and upon the captain and others. And although it be not always so plentiful as it was at this time with us, yet by the goodness of God, we are so far from want that we often wish you partakers of our plenty.
Monday, November 25, 2013
Part II – The Constant Spread of Misinformation in Military Rape and Sexual Assault Cases (UCMJ Article 120) – Another Court-Martial Tale, Another Rebuttal
The previous news article and rebuttal.
In a previous blog post, I discussed the spread of misinformation about the military justice system and how a one-sided, inaccurate, article written by an angry complainant got published about a military rape/sexual assault case I successfully defended. That post can be seen here:
A news article has just come out in the Kansas City Star about another military rape/sexual assault case I successfully defended, and I feel compelled to, again, provide a rebuttal so more balanced information is in the public domain. Below is my response to the latest news article, which appears here:
And at military.com, here:
Why respond at all?
Some might question why I would respond, given that the case was won and my client was acquitted. There are several reasons. Most importantly, for my client – to counter the public narrative that he got away with something and that the acquittal verdict wasn’t just. Nothing could be farther from the truth. The second reason for this rebuttal is for future clients, whose cases are being decided within a military justice system that is under constant attack. Military members read these articles. Military members serve as the commanders and court members in my clients’ cases. They need to understand the system is not unfair to those claiming rape/sexual assault and that an acquittal is not a “failure” of the system, but can be warranted by the evidence in the case.
This rebuttal attempts to prevent decisions by commanders and court members in future cases from being affected by having read these slanted narratives and then trying to right perceived past wrongs. They need to understand that stories they read in the press may not be accurate or tell the whole story about these military justice cases. Finally, as a former military officer, I am offended by how military members are being portrayed by politicians and the press – and I don’t simply mean how my clients are being portrayed. I also mean the portrayal of military commanders and court members who, when a case doesn’t result in conviction, are often described as intentionally letting one of their own, “a guilty criminal”, go free. This is an outrageous claim and anyone who makes it should be ashamed.
Leading up to the Kansas City Star publishing the article at issue, I provided written responses to questions the reporter asked me about the case. I often provide my responses to reporters in writing to avoid misquotes about what was or was not said. In this rebuttal I will provide verbatim excerpts of some of the quotes I provided to the reporter.
The military justice system.
Here is my full written quote to the reporter regarding the perception of the military justice system:
“There is a wildly inaccurate public narrative about how the military justice system is allegedly “unfair” to those who claim rape or sexual assault and/or is “failing.” This narrative is being pushed by government officials, particularly members of Congress. They base their opinions on one side of the story and hearsay, and don’t truly know or understand what happens in these trials. More importantly, the other side of the story, the defense perspective, is actively being avoided by them. These officials have an ill-informed agenda and they are only open to information that supports that agenda. If they truly want balanced and candid information about what is happening in the military justice system, they need to hear from trial practitioners, particularly from the defense side. Instead, they begin with the presumption of guilt, they misinterpret the statistics, and they use those statistics to push the argument that the system is “failing” because they don’t like or understand what the percentages mean, or what is contributing to them. The outcry and efforts to change the military justice system are not based on a desire for a fair justice system, or a search for the truth in these cases…they are based purely on the desire for more prosecution oriented results. The inevitable result of this will be more innocent military members being convicted.”
The original prosecutors in the case.
Before even addressing the defense side of this latest case in the press, I want to address the complainant’s claim that the Special Victim Prosecutor was concerned with the reputation of the accused and the prosecutors asked the complainant “more than two dozen times” if she wanted to go forward because this would impact the life of the accused forever. I obviously wasn’t privy to discussions between the SV prosecutor and the complainant, but this claim not only strains credulity, it shatters it. The original SV prosecutor was very zealously representing the government in the case.
So, here is the question… Is the Air Force going to sit back silently and not look into this and fail to come to the defense of their own prosecutors, or are they going to do the right thing? Is the Air Force Judge Advocate General (TJAG) or other Air Force official, going to address this outrageous claim? My guess is they won’t, because the military seems afraid to publicly say anything that questions the truthfulness of a rape/sexual assault complainant. These complainants can say the most outrageous things about the military justice system, military law enforcement, military judges, military prosecutors, military court members (and, of course, the defense) – and military officials seem afraid to challenge what they say because this will be used by crusading politicians who will publicly express outrage that a complainant’s truthfulness is being questioned and the “failing military justice system” is actually being defended. Consequently, the public narrative that the military justice is “broken” continues to build…
Article 32 hearings generally.
One of the latest military justice issues being hotly debated by politicians, and in the press, is the conduct of Article 32 hearings. In the KC Star article, the reporter says I consider the Article 32 “a legitimate tool to ferret out the fakers and the recanters among those who say they were raped.” My actual, full, written response to the reporter’s question about Article 32 hearings was:
“The Article 32 hearing is a very important step in the process for both sides. From the defense perspective, it provides a discovery opportunity and a chance to further our investigation of the case and the claims against our clients. In the unrelenting public narrative that is taking place, it is rarely, if at all, mentioned that in the military justice system the government/prosecution has law enforcement and investigative units, not the defense side. The government/prosecution has a legal office full of attorneys, not the defense side. The government/prosecution has specially trained and designated sexual assault prosecutors, the military defense side does not have an equivalently designated specialty. The government/prosecution controls approval for, and money spent on, case investigation, witnesses, experts, forensic testing, etc., not the defense. The government mandates all military members attend regular, countless, sexual assault briefings that push the idea that acquittals and/or dropped cases are a failure of the military justice system. To suggest that the military justice system is slanted in favor of the defense and the accused is ludicrous.”
The Article 32 hearing in this case – What is the truth?
According to the KC Star article, the complainant spent “days in her own Article 32 hearing” in which she was “asked about her sexual history.” She described it as “brutal.” This description of the Article 32 hearing in this case is very simply untrue. It makes for dramatic reading and is particularly timely given the current public debate…but what is the actual truth? The complainant’s testimony was audio recorded and transcribed verbatim; no one needs to just take my word for what I’m about to describe…
The entire Article 32 hearing lasted less than one full day, on 5 December 2012. During the portion of the hearing in which the complainant testified, she answered the prosecutor’s questions, and one follow-up question from the Investigating Officer, from 07:44 through 08:53 – a little more than an hour.
Then, in the remaining 50 minutes of her testimony, from 09:01 through 09:51, she answered questions from the defense and follow-up questions by the prosecution and Investigating Officer. Again, the defense asked the complainant less than 50 minutes of questions at the Article 32 hearing and none of those questions had anything to do with the complainant’s sexual history. All questions were specifically about Capt Boman, her allegations, and the evidence in the case.
Here is my full written quote when the reporter asked me about the complainant’s claims that she was harassed and somehow mistreated during the Article 32 hearing:
“The complainant (Ms. Phegley) in the Boman case is very familiar with this slanted public narrative, and she has made that known throughout the case.
Throughout the Boman case, including after the trial, the complainant made complaints about the system, law enforcement, the prosecutors, and the defense that feed into the inaccurate public narrative, despite the reality of what actually occurred in the Boman case.
Article 32 hearings are the latest military justice issue being publically attacked, and, not surprisingly, the complainant in the Boman case now wants to add her voice to this issue, notwithstanding what actually happened in the Boman case.
The reality of the Article 32 hearing in the Boman case was that the complainant, as a civilian, was not required, and could not be legally compelled, to attend at all. She was invited to attend and voluntarily chose to attend and testify. She also chose to remain in the hearing throughout the testimony of other lay witnesses – an opportunity provided to sexual assault complainants that other lay witnesses aren’t given, as every other lay witness is sequestered from each other to prevent witnesses from conforming their testimony to each other. The hearing was presided over by a senior female JAG attorney who was very experienced in the military justice system. The complainant was not “harassed” or “mistreated” at the hearing, nor would the Investigating Officer have allowed that. The hearing was conducted professionally and the Investigating Officer recommended that the case proceed to trial by court-martial, for a military panel to decide. The panel’s verdict was not guilty of the charge and its specifications.
The Article 32 hearing was open to the public and the complainant’s testimony was not only transcribed verbatim, the government should still possess the audio recordings of her testimony. So, there are sources that prove not only what was asked at the hearing, but how it was asked. Before accepting the complainant’s latest claims as an accurate description of the hearing, those verified sources should be reviewed and compared with her claims so you know the truth of what actually occurred.”
The defense case at trial.
I do not intend to re-litigate the trial in this response. However, there are major points that must be addressed.
The KC Star article mentions that my statement regarding the verdict referenced the complainant’s inconsistent versions of events, but the article doesn’t describe those inconsistencies that were highlighted throughout the defense case and argument. In fact, the KC Star article states that in the complainant’s early morning texts she said she had “unwanted sex.”
The testimony and evidence at trial, however, was that after waking up at Capt Boman’s house, but prior to going home to her long-term boyfriend that morning, the complainant’s communications with her friends was that she “slept with” Capt Boman and she was upset and worried about the possibility of pregnancy. When one friend asked if Capt Boman hurt her or raped her, she replied “no.”
The KC Star article states the complainant was “at the end of a 7 year relationship,” but doesn’t describe the testimony and evidence at trial about this issue. Testimony and evidence at trial showed that on the night at issue, the complainant was in a relationship with her serious boyfriend. They had been on and off for the past 7 years, but on the night in question, they had been essentially living together for an extended period of time and the complainant had repeatedly expressing her desire to get married to her boyfriend. Then, on the night at issue, before the complainant ran into Capt Boman at the bar, the complainant was in a fight with her boyfriend and he told her that if she didn’t come home to him that night he was going to put her belongings out of the house at the end of the driveway and the relationship was over.
According to testimony and evidence at trial, the complainant spent the night at Capt Boman’s and, the timeline established by the witnesses and evidence indicated that, despite what she had told friends earlier that morning, the complainant began to claim the sexual encounter with Capt Boman was not consensual after she returned home that morning and her boyfriend didn’t even speak to her. After that point, she started telling family and friends the encounter with Capt Boman was not consensual. According to testimony and evidence at trial, it was after that initial silent encounter with her boyfriend that she texted Capt Boman and claimed the encounter was not welcome, which is when he tried to defuse this shocking and confusing development as best he could.
In fact, the complainant’s boyfriend did put her belongings out of the house that day which upset her greatly. The evidence and testimony at trial also showed that for the weeks and months following the night with Capt Boman, the complainant continued to try to repair her relationship with her boyfriend; telling him she didn’t cheat on him, she was sexually assaulted by Capt Boman and she wanted to spend the rest of her life with her boyfriend. Just prior to trial, one of the complainant’s friends (perhaps out of conscience after being asked by one of the prosecutors on the new trial team) provided a private Facebook chat from the complainant that seemed to categorize the complainant’s encounter with Capt Boman as consensual.
Obviously, then, at trial, one of the primary motives we pointed to for these claims was the complainant trying to repair the relationship with her boyfriend by claiming she didn’t willingly cheat on him in the hopes that, after nearly a decade, they would finally get married.
The complainant going to Capt Boman’s house.
The description in the KC Star article about how and why the complainant went to Capt Boman’s house that night is not what the complainant described throughout the case. Throughout the case, the complainant stated that even though she told her boyfriend she was going to stay at a female friend’s house that night, when the night at the bar was wrapping up the complainant wanted to continue partying but her female friend wanted to go home. So, the complainant willingly went to Capt Boman’s house without her friend believing the party was going to continue there. The complainant’s story was not that she didn’t have a ride and was texting a friend to come get her. In fact, one of her friends specifically testified at trial that she offered to come get the complainant that night if she needed a ride, and the complainant never contacted her.
While I don’t know what the complainant said in her interview with the KC Star, I do know that another witness testified at trial that her recollection of what she was later told about that night was the version that now appears in the KC Star article. In other words, that witness had no first-hand knowledge, that version is just what they were told later. That is not what the complainant claimed in this case.
Capt Boman’s statement to investigators.
In his joint interrogation by a local detective and AFOSI agent, Capt Boman described the consensual evening, which began with kissing while watching a movie on the couch, and then going back to his bedroom with the complainant and having a consensual encounter with her, and then sleeping beside her until he woke up in the morning and she was gone. He provided many, many details throughout the hours of interrogation. What is surprising is that the KC Star reporter would quote an interrogation tactic, perhaps to try to show some sort of equivocation by Capt Boman.
During the interrogation, even though Capt Boman stated the sex was consensual and he described the encounter, the detective asked a classic interrogation tactic question to try to get an incriminating response. Specifically, the detective asked if it was “possible” that the complainant said “no” and he didn’t hear it. That is a question interrogators use hoping the accused will answer “that is possible” – which can later be used in the prosecution of the case thusly “even the accused said it was possible that she said ‘no!’” So, the fact that the question was asked, and Capt Boman said “that would be a bad thing” is an irrelevant point that, nevertheless, appears in the article.
Character evidence and testimony at trial.
Character evidence is not limited to a military accused. Evidence of relevant character traits can be presented about other witnesses, including the complainant. At trial, we did call military witnesses, lay witnesses, and presented affidavits attesting to Capt Boman’s exceptional character, including his character for non-violence and his character for truthfulness. Witnesses could have been called to attest to relevant traits of the complainant’s character, such as character for truthfulness, but that didn’t happen in this trial. That was a decision made by the prosecutors based, I would assume, on their evaluation of witnesses and evidence in the case.
The MySpace photo.
In the military justice system, there are rules of evidence that specifically protect a complainant against irrelevant character assassination. There is a rule of evidence, akin to civilian “rape shield” statutes, that requires issues potentially addressing a complainant’s sexual history or predisposition to be discussed and ruled upon in closed motion hearings. That means the public cannot attend and discussions and rulings occur behind closed doors. The closed nature of those proceedings protects the complainant from the public becoming aware of information that may fall under those categories that will not, ultimately, be used during the open trial.
In this case, one of those issues was the MySpace photo. The public would never have heard about this photo, except the complainant opened up the issue to the public by testifying about it at trial to try to gain sympathy and attempt to explain away her intentional destruction of evidence (the mobile phone). The issue was used again in the prosecution’s argument for the same purpose. It has now been brought up, again, in the news article.
In the KC Star article, it says we “dug up” this old photo. The photo at issue was the online public profile photo of a MySpace account identified as belonging to the complainant months after the events alleged in this case. It wasn’t discussed during the Article 32 hearing, it wasn’t even known about then. It wasn’t “dug up.” It was the photo being used for that particular online profile and it didn’t even show the complainant’s face. As argued in open court, and reported in the news article, I stated during the motion hearing that the complainant’s claims about the photo should not be permitted because she could not believe those claims to be true, and I verbally referenced our court submission regarding the photo. Based on the complainant’s description of what that photo depicted and its origin, this is a verbatim excerpt of what the defense submitted to the court about that photo:
“The defense is certainly not going to argue that a MySpace profile which hadn’t been accessed since years before the events at issue is relevant or admissible.”
There was no subsequent request to the court to use the photo for any reason.
The mobile phone.
The reason the destruction of the mobile phone was such an issue for the defense is the previous data extractions from the complainant’s mobile phone were only for content that had not been deleted by the user. On the complainant’s phone, all text messages and other data had been deleted through a week after the events at issue. In other words, the texts from the day, night, next morning, and week following the events at issue had been deleted. We sought a full forensic examination to extract data that had been deleted from the complainant’s phone.
The military judge ruled in favor of a full forensic exam of the phone. In direct contravention of this court order entered by the judge, the complainant destroyed the phone in two ways. She not only dumped it in a bucket of salt water, she performed a factory re-set of the phone to electronically wipe its memory. She then lied to the prosecution and defense when we questioned why the phone, and its memory, had been electronically and structurally destroyed. She claimed she had done nothing intentional to the phone. The reason the original prosecutors were taken off the case was not due to some misconduct on their part. It’s because the complainant essentially made them witnesses by destroying the evidence, lying about it to both sides, and then claiming the prosecutors knew about the damage to the phone – we only later learned, after new prosecutors were assigned, that the complainant finally admitted to intentionally wiping the phone and dumping it in salt water after prompting by the civilian prosecutor.
So, based on what the complainant did to the phone, no data could be obtained from the phone – even non-deleted texts that had previously been extracted could no longer be obtained. The phone was wiped clean and destroyed. The text messages from the complainant’s phone that we could use in trial were those that had not been deleted from her phone and had been extracted before she wiped and destroyed it. When asked by the KC Star reporter if I thought the phone issue was the tipping point in the case, here is my full written quote:
“You asked if I felt the complainant’s purposeful destruction of evidence (her cell phone) and lies about that issue were the “tipping point” in the case. Because court member deliberations are secret, I don’t know what was the “tipping point” or even if there was just one such point. In wrapping the case up during closing arguments, I argued the complainant’s motives to fabricate, her inconsistent versions of events (in some instances dramatically inconsistent), how her testimony was inconsistent with other key witnesses, and her intentional destruction of important evidence and lies about it. I believe the verdict in the case reflected all of those issues. The panel members in this case were highly educated, professional, military officers listening to a case in an oppressive environment geared toward conviction, but still trying to do the right thing. They were very apparently attentive, thoughtful, and thorough, and the outcome of the case was consistent with that.”
In addition, when the KC Star reporter asked about my argument during the motion hearing to dismiss the case because of the destruction of the phone, this is an excerpt of my written response to the reporter:
“…I did argue that Ms. Phegley’s intentional destruction of evidence (her phone) after it was ordered to be forensically examined by the previous judge was a federal crime. I argued that she then lied about what she did and she attempted to shield herself by making claims about the previous prosecutors, which were contradicted by the prosecutor’s sworn testimony. Therefore, I argued that she was thumbing her nose at the system, she was showing no regard for the system, the judge, the prosecutors or the truth, so she shouldn’t be permitted to avail herself of her case being heard in a system whose rules she disregarded…”
Finally, to wrap this up.
Some may come up with arguments to try to explain away the issues I have described in the sections above, but that’s not the point. The case has already been fully litigated and a verdict has been entered. The point is, compare what I have described in this rebuttal with the KC Star article. You be the judge. Was the article a fair and balanced description of the case? And, if you feel now that it wasn’t fair and balanced, you can extrapolate that to other articles you’ve read and statements by politicians about the military justice system...
As I responded in writing to the KC Star reporter when asked whether I had any statements to make about my client’s innocence, this is an excerpt of my written response to the reporter:
“…I was very clear at trial when I argued during closing that the government began the presentation of their case by showing the truth of what happened that night – Capt Boman’s videotaped interrogation in which he states that they had consensual sex that night. I absolutely stand by that.”