THE BLOG
08/26/2016 12:27 pm ET Updated Aug 26, 2017

Justice Finally Comes For Josh Seefried

Lt. Josh Seefried is a close friend of mine. Yesterday, a military judge declared his innocence after an exhaustive examination of the case in a four-day trial.

For over four years, I've watched Josh as the U.S. Air Force has strung out this case with no evidence. The entire case was summed up in an audio recording of his accuser that was played in open court. I paraphrase, "It was just a drunk mistake and I'm going to take responsibility and use it as a learning point." Indeed, drunken hook ups happen. Most of us have been there, whether gay or straight.

Josh's innocence was obvious even to casual observers of the case. And it was a no-brainer to legal observers. Yet, my friend who did so much to advance LGBT equality within the military was badly treated by the Air Force he is sworn to serve. Without going into all the details of the case, you should understand a few things.

The military equivalent of a grand jury is called an Article 32. Instead of an actual grand jury, there is an "Investigating Officer" who is a senior legal officer. The purpose of the Article 32 is to review all evidence presented to determine if probable cause exists. That is the lowest standard of proof in our civilian legal system as well.

In Josh's first Article 32, the Investigating Officer recommended against a court martial, which is the equivalent of a civilian indictment. Because the judge ruled that General Burke acted improperly in denying immunity to a witness, a second Article 32 was ordered. The Investigating Officer concluded a second time, and even more strongly, that a court martial was not warranted.

This is where it gets political. The Investigation Officer's recommendation goes to the "convening authority", in this case Major General Darryl W. Burke, Commander of the Air Force District of Washington. It is up to General Burke's sole discretion to accept the recommendation of the Investigating Officer or to pursue whatever other course of action he deems necessary.

This has been a point of contention among sexual assault advocates. Many have said that sexual assault has been swept under the rug by "convening authorities" failing to pursue courts martial when sexual assault has occurred. What has happened to Josh has been the opposite. The Article 32s had deemed that court martial was never warranted; yet General Burke chose to go forward anyway.

Skipping over other details and getting right to trial, I have been here from start to finish. Every witness called by the prosecution prompted questions of why they were even called as witnesses. Not a single witness, including the accuser, offered any credible evidence to prove the charges against Lt. Seefried. As the government concluded its presentation to the Court, I couldn't help but wonder if they had even reached the low threshold of probable cause, much less proving the charges beyond the shadow of a doubt.

It's worth stipulating that I'm not a lawyer, nor an expert on the military. Needless to say, I'm certainly not an expert on military law. This makes what I have witnessed and my personal conclusions all the more remarkable. Defense lawyers usually try to poke holes in the prosecution's case, raising possibilities that cast doubt on the charges. However, the prosecutors in this instance were the ones raising mere possibilities, getting nowhere near the burden of proof.

On its face, it seems as though Josh received unfair treatment from the Air Force. I won't extend this criticism to the counsel that presented this case. They were doing their jobs and had been handed a very challenging case. Yet they did it professionally and represented the government as well as they could.

Instead, senior Air Force officers and, potentially, political appointees within the Air Force should be asking themselves what there is to learn from this case. During the early days of the case, I had a conversation with a source at the Pentagon and it seemed to me that a pre-judgment had occurred. If this were the case, and it influenced the chain of command, it would be a violation of military law. It's hard to prove and has rarely been done, but cases like Josh's cause others to wonder why it was forced to move ahead and potentially lessen confidence in the Air Force to fairly apply justice.

At the end of the day, Josh has been found innocent. That is something to celebrate, but it did come at a high cost. Not only has his career in the Air Force been destroyed, but it has taken a significant toll on his personal life. In addition, the government has wasted significant resources pursuing this case. If you consider Josh's education at the US Air Force Academy, the lack of work productivity due to his clearance having been revoked, the Air Force's unwillingness to let him separate and pursue other employment, the cost of salaries of the prosecution, the cost of defense counsel, the cost for witnesses to travel and be housed for hearings and trial, the cost of expert witnesses and potentially more cost that I am not considering, it is pretty astronomical.

Thankfully, Josh has had a great group of friends to help him through this. Not everyone is so lucky. There is an incredibly high rate of suicide among military members accused of sexual assault, whether innocent or guilty. This underscores the need for senior military officials and political appointees to continue to seek ways to improve the pursuit of justice.

Josh is a wonderful guy who is fun to be around and is driven to make the world around him a better place. After being held back for far too long, his friends all anxiously wait to see what surprises he has in store for us all.