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:
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.”
