Trial for midshipman charged with sexual assault opens Thursday
By HEATHER MONGILIO | The Capital | Published: July 9, 2020
ANNAPOLIS, Md. (Tribune News Service) — The government attorneys prosecuting a midshipman charged with sexual assault will likely work to establish that 3rd Class Midshipman Nixon Keago has a pattern.
The government will likely argue at the trial, which begins Thursday with the selection of the panel of members — the military version of a jury — that Keago goes into rooms he is not supposed to be in. He goes in while a person is sleeping. Alcohol is usually involved. Both the woman and Keago had been drinking that night.
“Because those are the people he tries to target,” said government attorney Lt. Cmdr. Chris Cox during the hearing. “Those who are intoxicated or asleep.”
Keago is charged with seven charges of violating articles of the Uniform Code of Military Justice, including sexual assault, with specifications of asleep and bodily harm, attempted sexual assault, with specifications bodily harm, without consent and asleep, obstructing justice and burglary.
According to charging documents, Keago allegedly sexually assaulted or attempted to sexually assault midshipmen while at the Naval Academy and also once in New York. Each of the charge descriptions state he enters the room the midshipman is in and attempts to or does penetrate her or rubs his body against hers. The burglary charges stem from entering each of the rooms.
The prosecution will likely introduce testimony from Keago’s ex-girlfriend, Jeremiya Norris to establish the pattern exists outside of the Naval Academy, although Norris’ testimony is not related to any of the incidents that led to Keago being charged. At a pre-trial hearing July 2, Norris testified that she found Keago standing over a bed while her friend slept in it. The friend later told Norris that she believed someone had touched her.
Keago’s defense attorneys argued that that the woman never identified the person who she said touched her as Keago, just that she felt a presence in the room and that someone touched her.
Judge Capt. Aaron Rugh will allow the government to use Norris’ testimony about what she saw and what the woman told her, despite arguments from the defense saying the testimony does not show Keago touched the woman. The eight members of the panelcould find that there is evidence Keago did sexually assault the woman, Rugh said.
Despite the accounts of vaginal penetration, Keago is not charged with rape due to the specificities of the Uniform Code of Justice, which details the elements required in each charge.
According to the 2019 Manual for Courts-Martial, rape is charged when there is unlawful force, which causes or could likely cause death or grievous harm, threats of death or placing a person in fear of death, grievous bodily harm or kidnapping or rendering the person unconscious.
Sexual assault is charged when a person commits a sexual act upon a person that threatens or places a person in fear, happens without consent or when the person is asleep, unconscious or is unaware the sexual act is occurring or when a person is incapable of giving consent, such as due to being intoxicated.
The military has made changes over the years to tighten up its charging language around rape and sexual assault, said Kyndra Rotunda, professor of military and international law at Chapman University, as well as a former Army Judge Advocate General’s Corps officer.
In 2012, the military reformed the Uniform Code of Military Justice to put more focus on the offender in rape and sexual assault charges.
When deciding what to charge, prosecution will look at what it can definitely get, which in this case was sexual assault charges, Rotunda said.
The prosecution does not need to prove a modus operandi, more colloquially called an MO, as part of its burden of proof that a crime happened, but it can be helpful, she said. In Keago’s case, it is compelling that there is a consistent attack with the women all saying the same thing.
“The fact that he does, makes the case, I think, really compelling when he’s acting consistently, so you have several victims all independently repeating the same kind of conduct,” Rotunda said.
It is even more compelling that there is another example where Keago allegedly acted similarly outside of the events in the charging documents, she said.
What Keago allegedly did during spring break 2019, while visiting Norris, was “almost to the detail” of the other four incidences, Cox said.
At this point, according to charging documents, Keago already attempted and did sexually assault midshipmen three times. The fourth incident was May 2019, about two months after spring break.
There is some caution to be had when introducing testimony from unrelated events, said Eugene Fidell, an expert in military justice.
Introducing testimony like Norris’ could be more confusing than helpful for the members panel, he said. It becomes a balancing act of whether the probative value outweighs the potential confusion.
Prosecutors also have to consider a person’s attention span, Rotunda said.
Keago’s trial will start Thursday with member selection for the eight-person panel. Unlike the civilian court system, the members pool is selected by the commander of the convening authority, in this case the Naval Academy, Fidell said.
All of the members must have a higher rank than Keago, Rotunda said.
“So it’s not really a jury of your peers,” she said.
Unlike civilian court, to get a conviction, at least six of the eight members must find Keago guilty, instead of making an unanimous decision.