Fort Bragg court proceedings start for Special Forces colonel facing sexual assault charges
By RACHAEL RILEY | The Fayetteville Observer, N.C. | Published: August 26, 2020
FAYETTEVILLE, N.C. (Tribune News Service) Military court proceedings for a Special Forces colonel who is facing sexual assault charges started Tuesday at Fort Bragg, with a jury selected and three witnesses testifying for the prosecution.
The eight-man court member panel, which includes seven colonels and a brigadier general "jury of peers," heard opening statements from the defense and prosecution in the case of Col. Kevin M. Russell.
Russell is charged with five specifications of sexual assault and abusive sexual contact.
“Col. Russell is not guilty,” said Russell’s lawyer Michael Waddington during his opening remarks Tuesday, reiterating the plea Russell made during a June 26 arraignment.
Capt. Barry Fitzgerald, who is an assistant to the prosecution, said the case is one of “power, control and possession.”
Waddington said although the victim was a captain at the time and worked in the same space as Russell during the deployment, he was not her supervisor, meaning “power and control” could not happen.
The Fayetteville Observer does not typically name victims of alleged sexual assault.
Fitzgerald said the victim was a captain at the time, and she and Russell had a mentor and mentee relationship during a 2015 deployment to Pakistan.
The relationship, he said, led to consensual sex.
Russell had a temporary duty assignment in Jordan at the end of April 2015, when Fitzerald said the victim had another intimate relationship at the time with another captain.
The captain shared the same workspace as Russell, who was his supervisor and a housemate during the Pakistan deployment.
The captain, who was a witness Tuesday, said he was not aware of the relationship between the victim and Russell, until after Russell returned from the Jordan assignment in June 2015.
After returning from Jordan, Fitzerald said Russell found the victim in the captain's bedroom and made it clear he wanted to continue pursuing a relationship with the victim.
On June 5, 2015, Fitzgerald said the victim, the captain and Russell went to an establishment known as the French Club, which is a social establishment hosted by the French embassy.
He said the victim was inebriated and the captain and Russell helped her into a guest room that both men lived in during the deployment.
He said the captain had never seen the victim intoxicated before.
The captain said he and Russell helped the victim into the house and that he was the first one in the bedroom as Russell held her up in the doorway.
He alleged that Russell kissed the victim on the mouth, but she did not reciprocate and that he told Russell it was time to put the victim to bed, with Russell walking out.
The captain said he left his door partially open but did not hear any movement outside.
About 2 a.m., he said the victim came into his room in a “hurried, flustered, disoriented state."
He said he stayed up and talked to her for about an hour and that she told him she regained consciousness but didn’t know what was happening and thought someone was “trying to have sex with her.”
He said he couldn’t remember the exact time when she alleged it was rape, but it was “much later,” after the time.
“In the immediate aftermath (she) was confused … (and) trying to work out what happened,” he said.
He said it was 2017 to 2018 when the victim raised the issue with him and was deciding whether to proceed with the allegation.
Fitzgerald said the victim engaged in consensual sexual acts with Russell previously.
“(She) did not consent on the night and early hours of June 6,” he said.
Waddington said there was no sexual assault, and the case is not about corruption.
He said the “serious accusation needs to be backed up with proof.”
“You’re going to hear a lot about conduct that was not appropriate for anyone … adultery … but there was not a sexual assault,” Waddington said.
The captain and Russell were each married at the time of their relationships with the victim.
Waddington said though Russell was married at the time, he is not being charged with adultery.
Waddington alleged the captain lied to the Army Criminal Investigation Command about his relationship with the victim after she reported the alleged rape in 2019.
The captain, who has since been promoted to a major, said he is testifying in the case after being granted immunity on the adultery allegations.
The captain said during the investigation he had not spoken to the victim in months and later told investigators about their relationship, once he had a lawyer.
The captain estimated that the victim and Russell hung out about half a dozen times after the alleged assault and that he was not aware that the victim and Russell had sex the day after a party the victim organized.
While cross-examined by Waddington, the captain said there were times the victim tried to end their relationship and times he tried to end it.
He said he later learned that emails he received about the victim having cancer were not from a doctor and that there were a couple of times she showed up at his residence unannounced.
He said as their relationship “unraveled,” that he felt it was implied he could have done more about the alleged rape.
Waddington alleged that the victim lied to the captain about her relationship with Russell and that there are photos of the three hiking together.
“She created this love triangle,” Waddington said.
Waddington said the victim held parties at the house where the captain and Russell lived to include a “mango” party and '80s-themed dance party after the alleged rape and went salsa dancing and had romantic dinners with Russell.
Text messages between the two also continued, he said.
Waddington said the victim and Russell had sex at the '80s party, which was a going-away party for Russell, and the day that he went to the airport to return from the deployment.
He alleged that once Russell left, the victim “latched” onto the captain.
Waddington alleged the victim told people she has anxiety; and when the captain tried to end the relationship, she “kept throwing it above his head” to remember the night of the alleged rape.
Waddington alleged the victim interfered with the captain’s relationships “crushing his marriage” and interfered with a relationship with another woman he later dated while going back to college and created a fake Gmail email account with the name of a Womack Army Medical Center doctor to send to the captain letting him know the victim “had cancer.”
He alleged the victim lied to maintain the relationship with the captain, including having him as the “star witness” of the alleged sexual assault trial she is involved in.
“Please don’t rush judgment… don’t be persuaded by crying and manipulative ploys … wait until you hear all the evidence in this case,” Waddington told the jury.
Others who testified Tuesday included a male lieutenant colonel who said he was an Army program manager at the time of the deployment and was acquainted with Russell, the captain and the victim.
The lieutenant colonel was at the French Club the night of the alleged rape and in the same vehicle when everyone went home.
He said he remembered the victim seemed to have a “possible loss of energy” and seemed to “trail off” during the ride home.
He said he thinks he was at the '80s-themed party after the night of the alleged rape and doesn’t remember specific interactions, but said at the time nothing seemed out of the ordinary.
A female lieutenant colonel testified at Tuesday’s proceedings that there were not a lot of female officers on the 2015 Pakistan deployment and that the victim was one of three.
The lieutenant colonel described the victim as a “good officer and logistician.”
She said she was aware of the victim and Russell’s relationship by what the victim told her and observing “office dynamics” in which Russell spent time at the victim’s cubicle frequently and showed interest in her.
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