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Military judge reduces challenges to jury in sex assault case

By ERIK SLAVIN | STARS AND STRIPES Published: July 25, 2013

YOKOSUKA NAVAL BASE, Japan — A military judge, citing the quality of a court-martial jury, has reduced the remedy he imposed after declaring President Barack Obama’s comments on sexual assault were “apparent unlawful command influence.”

The case of United States v. Chief Petty Officer John Averell, in its fourth day Thursday, is expected to be among the first to reach a verdict with Obama’s comments brought up as an issue.

On Tuesday, the Navy military judge, Cmdr. John Maksym, took back four of the five additional peremptory challenges he awarded as a remedy to Averell’s defense during a pretrial hearing earlier this month. Such challenges allow a person to be removed from the jury pool without cause.

Maksym had ruled that comments by Obama and other military leaders, who have become very specific while talking tough on sexual assault, have the potential to taint both the way Navy officers who convene courts-martial select juries, and the way juries come to a decision.

It just didn’t happen to taint anyone this time, according to Maksym’s ruling.

“I don’t retreat from the finding,” Maksym said. “There is apparent unlawful command influence, based on the commander in chief’s comments and of other [military leaders].”

Maksym’s finding illustrated the struggle that legal analysts say military judges could face throughout the rest of Obama’s presidency as they aim to preserve the rights of accusers while shielding the rights of the accused from unlawful command influence.

In May, Obama told reporters that servicemembers engaging in wrongful sexual activities must be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

Obama’s specific call for dishonorable discharges — one of multiple options a jury considers during sentencing — could be interpreted as a commander in chief’s orders, potentially compromising the military justice system’s legal obligation to arrive at a sentence based on the facts of a case.

Since June, judges in a number of sexual assault cases have ruled that comments by Obama and top military brass made it difficult for career-minded servicemembers to deliver an impartial sentence without keeping their senior leader’s words in mind.

As a result, multiple trials have become mired in motions, delays and appeals.

In June, a Hawaii military judge, Cmdr. Marcus Fulton, ruled that Obama’s comments precluded a jury from delivering a punitive discharge. That ruling could conceivably allow a sailor who is convicted of sexual assault to retain veterans benefits.

Maksym tagged Fulton’s decision as “a nuclear option of a judicial nature.”

He arrived at a different solution during pretrial hearings for Averell, a Sasebo Naval Base corpsman charged with sexually assaulting a female E-3 aboard a barge assigned to USS Germantown sailors.

Instead, he awarded Averell’s defense the ability to block six members of the juror pool from joining the panel without giving any justification for it — five more peremptory challenges than normally are allowed for each side.

Maksym then gave leeway to both the government and defense during jury selection, excusing an unusually high 12 potential jurors for cause.

Ten jurors remained. Seven could have been removed through each side’s remaining peremptory challenges, which would have left too few for a trial.

The prosecutor, Lt. Jeff Pietrzyk, then asked Maksym to strip the defense of its extra challenges. The potential jurors, all of whom were either officers or senior enlisted sailors because the defendant is an E-7, indicated they either “didn’t care” about Obama’s comments or showed they would follow only the judge’s instructions, Pietrzyk argued.

“The defense didn’t raise one challenge for cause based on an unlawful command influence issue,” Pietrzyk said.

Maksym generally agreed with the prosecution but said he would leave the defense with one extra peremptory challenge, in part, to discourage government officials from making comments that damage the military justice process in the future.

“Unlawful command influence is the mortal enemy of military justice,” Maksym said, citing the words of a higher-court precedent.

The government was still presenting its case against Averell on Thursday, meaning a verdict would be unlikely to come until this weekend, at the earliest.

Averell has already pleaded guilty to fraternization and adultery with the young sailor, whom he mentored aboard the USS Germantown.

 slavin.erik@stripes.com
Twitter:@eslavin_stripes

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