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Brown defense: X-rays show his bad back

By DAVID ALLEN AND CHIYOMI SUMIDA | STARS AND STRIPES Published: January 18, 2004

NAHA, Okinawa — Marine Maj. Michael Brown couldn’t possibly have sexually assaulted a woman in her compact car, his defense claimed Friday.

He has a bad back, they argued.

During a second straight day battling with the prosecution over evidence presentation, Brown’s lawyers were successful in presenting three X-rays of the 19-year Marine veteran’s lower spine.

They showed Brown had a steel collar placed around three lower vertebrae after a 1999 service-related injury. The collar is held in place by six bolts.

When defense attorney Toshimitsu Takaesu attempted to introduce the X-ray evidence in early September, he told the panel of three judges that Brown, 40, was still taking painkillers and had difficulty moving at times.

The judges accepted the evidence Friday.

They also took into consideration a motion made by the defense to dismiss the charges against Brown on the grounds his rights under the status of forces agreement were violated by the court when the judges accepted as evidence a statement his accuser made to the prosecutor.

Defense attorney Takeshi Takano argued the SOFA, which spells out the rights of U.S. servicemembers and civilians in Japan under the U.S.-Japan Security Treaty, grants certain rights to Americans charged with crimes that are not usually granted to Japanese defendants.

“He has a right to confront his accuser,” Takada said. “That’s clear. And it’s clear to us that the court violated that right when it accepted the woman’s statements made to the prosecutor outside the courtroom and without the defendant being able to cross-examine her.”

Takano is one of the founders of the Japan Miranda Association, which seeks to expand the rights of all defendants in the Japanese legal system.

“In this case, the court routinely accepted the statement the alleged victim made to the prosecutor as an evidence,” he said after the hearing.

In other action Friday, the judges accepted as evidence several karaoke request cards that Brown had filled out at the Camp Courtney Officer’s Club the night a barmaid said he attempted to rape her when she gave him a ride to his home in nearby Gushikawa.

On Nov. 2, 2002, Victoria Nakamine, 40, told police she was attacked by an American whom she had offered a ride after the club closed. She said she didn’t know the man’s identity.

Takaesu contends the woman made the report in order to get the military to replace her cell phone, which Brown allegedly threw into a river when she threatened to call police.

Nakamine knew who Brown was because he’d spent the night in the small club singing at least 10 karaoke songs, Takaesu said. In order to sing, he had to fill out a card with his name and song request.

“Each time my name was called out, some of my friends would also call my name,” Brown testified. “Then I went up on the stage area. It’s a very small club. My accuser worked at the bar, so she could hear whoever’s name was called and see the person who went up on the stage.

“It’s such a small club that if you go there for an evening, you’re going to know everyone’s name.”

Takaesu said the evidence should prove Nakamine knew Brown and had no intention of charging him with a crime. During her testimony last May, Nakamine said police and prosecutors coerced her into filing charges against the major and she did not want him punished.

Also during Friday’s hearing, the court granted a defense motion to have the clothing Nakamine wore the night she claims she was assaulted admitted as evidence.

Prosecutor Tsuyoshi Satake strongly objected to their decision, arguing that photos of the woman’s clothing would suffice.

Takano argued that was not good enough. A physical examination of the clothing would be the best evidence to show whether Nakamine had been violently attacked as claimed in the police reports, he said.

However, when Chief Judge Nobuyuki Yokota ordered the evidence be presented, Satake refused and said he would appeal their ruling.


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