Navy clears appellate judge accused of lying while prosecutor
By NANCY MONTGOMERY | STARS AND STRIPES Published: January 11, 2017
The Navy has cleared a top judge accused in an ethics complaint of lying in his previous job as prosecutor in a high-profile sexual assault case.
The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.
“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes. The memo was addressed to Kevin McDermott, the civilian lawyer who represented the sexual assault defendant, Marine Maj. Mark Thompson, a former history instructor at the U.S. Naval Academy convicted of having sex with two students at the academy.
The widely-respected Rugh came under investigation for a statement he made while testifying by phone in a 2014 Marines Board of Inquiry convened to determine whether Thompson should be dismissed from the Marine Corps. Charged with raping one student and having a consensual relationship with another in 2011, Thompson had been convicted of indecent conduct and fraternization. He was sentenced to two months’ confinement and a $60,000 fine.
Although court-martial convictions are treated normally as conclusive proof of misconduct, the board decided that the verdict was wrong. It ruled that, as Thompson had testified, he had not committed misconduct and should remain an active-duty Marine.
Rugh was the lead prosecutor at Thompson’s 2013 court-martial. He testified to the board about the facts of the case and said his prosecution team had spoken with family members of one of the students for corroboration of her account in a key piece of testimony.
That was the first Thompson’s defense counsel had heard of the prosecution’s discussion with the family member, and they raised it as an issue of nondisclosure in an effort to reverse Thompson’s convictions.
In the meantime, The Washington Post, while doing an investigative story about Thompson’s claims that he had been wrongfully accused and convicted, contacted the student’s family members. They told the Post that the prosecution had never contacted them.
McDermott then filed a complaint that Rugh had provided false information to the board.
But the Post story also turned up inconsistencies in Thompson’s version of events, as well as new evidence — one of the student’s cellphones — and he was court-martialed a second time, on a charge of making a false official statement and conduct unbecoming an officer. That court-martial was scheduled to begin on Monday.
Judicial ethics investigations are almost never made public. Rugh’s ethics probe came to light after a judge presiding in Thompson’s arraignment mentioned it and it was reported by Military.com.
Rugh’s attorney told the Post that Rugh’s statement to the board was an honest mistake based on what he thought was true.