Attorneys for a midshipman at the center of a sexual assault case against three ex-Navy football players have asked in a federal lawsuit filed Thursday that the Naval Academy's superintendent not be involved in the decision of whether the men will be court-martialed.
The lawsuit seeks a court order directing Vice Adm. Michael Miller to recuse himself, said Susan Burke, attorney for the woman the men are accused of assaulting. It says that as the head of the school, Miller is likely to be biased and that he did nothing to prevent lengthy and abusive testimony during a military court hearing on the accusations.
"The trial days were running well past the capacity of the witness,'' Burke said.
The woman spent five days testifying during the proceeding, known as an Article 32 hearing, which resembles a preliminary hearing in civilian court. She has said she drank heavily and has no memory of having sex with the midshipmen after a 2012 toga party at an off-campus house, but became concerned after hearing gossip that she had had sex with multiple people.
The hearing that spanned the Labor Day weekend lasted a week. The 21-year-old senior midshipman faced tough cross-examination that included questions about whether she wore underwear the night of the party. She also was asked in open court about how much a woman needed to open her mouth to perform oral sex.
Most of the first day of the hearing last week took place in closed court, with attorneys arguing over what evidence would be allowed. The lawsuit says the woman had to take the stand to rebut "various exaggerations and fabrications about her past sex life'' without underlying evidentiary support, said the lawsuit filed in Maryland.
"The investigative officer issued a sealed decision, which wrongfully permitted defense counsel to make blatant intrusions into the midshipman's privacy without any countervailing relevance,'' the lawsuit said.
The woman said on three different days she was too tired to continue testifying. Testimony scheduled for Saturday ended up being postponed when the woman said she couldn't continue after answering questions for four days from three defense teams.
The lawsuit noted that the midshipman was required to report at 7:30 a.m. and not released until 9:30 p.m. on the second day of the proceedings last week. She also was required to report at 7:30 a.m. on the following two days.
Burke sought to get the full holiday weekend free for her client to rest, but the superintendent denied the request, according to the lawsuit.
The Associated Press generally doesn't name those who authorities say were victims of sexual assault. The lawsuit refers to the woman as Jane Doe.
The lawsuit stated: "The superintendent, acting from afar and without ever setting foot in the courtroom, intentionally subverted the judicial process in order to punish Midshipman Doe for daring to blow the whistle publicly on wrongdoing by Naval Academy football players and the subsequent cover-up. He acted from bias because his own career interests in being perceived as a strong leader of the academy were at stake.''
The academy said it would release a statement later on the lawsuit.
The weeklong hearing wrapped up Tuesday night. The investigative officer who presided over the case is expected to review the evidence and make a recommendation to Miller on whether the men should be court-martialed. Such reviews can take days or weeks to complete.
Midshipman Eric Graham, 21, is charged with abusive sexual contact, while Midshipmen Tra'ves Bush, 22, and Josh Tate, 21, are charged with aggravated sexual assault. All three also are charged with making a false statement.
"The superintendent ordered Midshipman Doe to endure an abusive schedule of cross-examination lasting in excess of 30 hours, in which defense counsel's questions went well beyond the scope of her direct, and well exceeded any relevant discovery,'' the lawsuit stated.
The cross-examination took place after the woman testified about her limited recollections of the night in April 2012 at a house in Annapolis, where Navy football players held a crowded party with men dressed in togas and women dressed in yoga pants. She has testified she has no memory of having sex with anyone that night and that she had a previous sexual relationship with Bush.
She has testified that she awoke at the house the next morning with a sore back. She also said she had consensual sex with a different football player that morning at the house, while there were two other people in the room.
The case has drawn attention as the White House, Congress and the Pentagon have been focusing on the issue of sexual assault after a string of cases in the military this year. President Barack Obama highlighted the importance of the issue at the Naval Academy's graduation ceremony in May.
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