“That we are even in this courtroom trying this case-Wow!” One of the best lines in the compelling closing argument by U.S. Air Force 1st Lt Josh Seefried’s excellent civilian defense counsel, Rich Stevens. As an attorney with over 30 years trying civil cases involving complex air crashes, I could not agree more. I have never seen a case that was more of a waste of time and resources, and until the correct verdict, a travesty of justice. It should have never been tried. The evidence was so weak it was literally impossible for the government to have proved guilt “beyond a reasonable doubt.” In my opinion, they could not have even met the far lesser burden of proof used in civil cases of liability “by a preponderance of the evidence.”
Simply put, Seefried, who is gay, was accused of sexually assaulting a gay Marine Lieutenant in Seefried’s hotel room during the first Fleet Week in New York City following the repeal of the Don’t Ask, Don’t Tell law during May 2012. The Marine contended he was so drunk he blacked out and could not consent. He claimed Seefried touched him, played with his penis, performed oral sex on him, and might have also penetrated his anus.
I will not go into all the sordid details of the assault testimony and subsequent medical examination of the accuser. It can be found in two very accurate and thorough articles written for the Washington Blade by one of their veteran reporters, Lou Chabbaro, Jr. Suffice it to say, the evidence was graphic, sexually explicit and embarrassing to the accuser and the accused. Not only to them, but also to all of the gay military officers who observed these two junior officers over the weekend. Six officers were compelled by the government to provide trial testimony.
The Air Force assigned three Judge Advocate General (“JAG”) Captains to try the case on behalf of the government. An Air Force JAG, and a civilian lawyer, Mr. Stevens, whom he had retained, and paid out of his own pocket, defended Seefried. Throughout trial, a Marine JAG Captain was present to represent the rights of the accuser. Four expert witnesses sat through the entire trial, all paid for by the government (you and me).
During the opening statement by the prosecution, it became apparent the government’s case was weak. The prosecutor lead with the theme of “ Too drunk to remember, too drunk to consent.” This is a clear misstatement of the law of consent. You can drink and give consent, it is a question of incapacitation.
The real problem the government had with the case was the different versions of events by the accuser and one key witness, a Coast Guard Lieutenant Commander (“LCDR”) whom the Marine initially accused of sexually assaulting and raping him. I lost count of the many versions provided by these two. There were the statements given to the Naval Criminal Investigative Service by both of them, the Marine’s rendition of events he gave to the Sexual Abuse Nurse Examiner, their sworn testimony at two Article 32 hearings. All contained significant inconsistencies. They were both called by the government to testify at trial. In live testimony, they both came up with still yet another version of events with inconsistencies, The were both impeached by the defense with these earlier statements and sworn testimony. Even more damning to the government’s case was the revelation at trial that the Coast Guard LCDR had made earlier false claims of observing a different sexual assault and received a letter of censure for making a false report. This was topped when it came out during cross-examination that the now former LCDR had been administratively discharged, after 16 years of service, for using his government credit card to purchase personal items. Try as the prosecutors may, these witness could not be rehabilitated. They were both not credible.
Every one of the officers called by the prosecution, save one, helped the defense.
This sordid affair started at a restaurant where they had met to have brunch serving bottomless mimosas. The timeline for that afternoon was very unclear. It appeared, from most of the witnesses, that when they left the restaurant to walk to the Hotel where Lt Seefried was staying, they had been at brunch no longer than several hours. The number of mimosas consumed in that two to three hour brunch varied from just a few to 12. The Marine claimed he had no memory of any event from midway through the brunch, in the mid to late afternoon, until awaking in Seefried’s bed around 11:30 that same night. The other officers testified he seemed fine and was able to walk the 5 blocks from the restaurant to the hotel with no observable difficulty.
Once at the hotel, five of them jumped into the hot tub. The Coast Guard LCDR began making out with a Navy Lieutenant, and according to all the testimony, Seefried and the Marine also started making out. One of the witnesses said Seefried and the accuser were “really into it.” Another testified he could see they were rubbing each other’s crotch under the water. Because the Marine had previously told him he did not find Seefried attractive, one witness, a Navy JAG LCDR, found his conduct strange, but he was not at all concerned about his well-being. The JAG testified under cross-examination that if the Marine, who was also his roommate over the weekend, had seemed incapacitated he would have intervened to help him.
Surveillance cameras were located around the public areas of the hotel where the incident occurred. Inexplicably, the government, though aware that cameras were there, made no effort to obtain them until 5 months after the alleged assault. By then, the tapes had been erased. Certainly, if the government had conducted a proper investigation much of this confusion could have been sorted out.
The one officer who might have possibly helped the prosecution was a gay Army Major who was not at the Fleet Week celebration. The accuser had called him some 6 days after the alleged assault, complaining of rectal pain. Although the accuser testified the morning after the alleged assault, when he returned to his room, he found lubrication on his anus, he had no recollection of being anally penetrated. The Major, who was in training to be a psychologist, planted the seed that perhaps he had been raped. He suggested the Marine go to the hospital to be examined and evaluated. The Sexual Abuse Nurse Examiner who examined the accuser, testified at trial that she could not, to a reasonable degree of medical certainty, opine that he had been penetrated. The injuries she observed could have been equally caused by an infection. Now, with rape in his mind, the Marine initially accused the LCDR of rape and Seefried of sexual assault.
The Coast Guard conducted an Article 32 hearing, similar to a civilian grand jury. The Coast Guard JAG officer who conducted the investigation found insufficient evidence to go to General Court Martial. The Coast Guard Convening Authority followed that recommendation and the charges against the LCDR were thrown out. Then the Marine accused Seefried with the rape!
A very experienced, and respected Air Force JAG Colonel was assigned by the Air Force Convening Authority, General Darryl Burke, to conduct Seefried’s Article 32 hearing. The LCDR, whose charges had been dismissed by the Coast Guard, requested immunity to testify at Siegfried’s hearing. The Convening Authority denied the request. Even after the LDCR testified against Seefried, the Colonel recommended to the Convening Authority that the case against Seefried not go to trial. MG Burke ordered the case sent to General Court Martial. Seefried’s lawyer made a motion to the military judge overseeing the case to grant the LCDR immunity. The motion was granted, and another Article 32 hearing was conducted where the LCDR, now with immunity, provided favorable testimony for Seefried. Again the Colonel recommended no General Court Martial, and for a second time Burke ordered the case taken to trial.
In the end, even if the government’s two primary witnesses, the Marine and the LCDR, had been credible, or the other witnesses had provided testimony damaging to the defense, the issue would have boiled down to consent. Clearly, the Marine had, by his own conduct consented to making out with Seefried in the hot tub. But when was the consent withdrawn? What would a reasonable person conclude under the circumstances? The accuser’s testimony was that when he was in bed, Seefried said to him “If you want to stay in bed with me you have to cuddle.” After saying that, he claims Seefried touched him, played with his penis and performed oral sex on him. The Marine said nothing, nor did anything that suggested he objected. He merely crossed his arms and went to sleep. Is that a withdrawal of consent? Seefried did not take the stand, but denied doing any of this.
Fortunately for Seefried, the military judge, just like the Article 32 investigating officer before him, concluded the government had not met its burden of proof. I speculate that given the poor quality of the evidence and the lack of credibility of the accuser and the LCDR, the judge did not even reach the issue of consent. In a matter of 30 minutes after closing arguments were completed, he returned a verdict of “Not Guilty on all Charges and Specifications.”
If he had been found guilty, Seefried would have been able to make a statement and call character witnesses. Immediately thereafter, the military judge would have imposed a sentence of up to 25 years. Armed guards were standing by to take Seefried to prison. He would have been stripped of his commission as an officer, lost all military and VA benefits, and would have had to register as a sex offender.
This is not the end of the story. How could this waste of judicial resources, time, and taxpayers money have happened in the first place? Why would the Air Force ruin the career of a promising Academy graduate and make his life a living hell?