Judge’s actions in Air Force sexual assault case to be questioned

By MICHAEL DOYLE | McClatchy Newspapers | Published: February 1, 2013

WASHINGTON — An Air Force enlisted man convicted of rape at a Joint Base Charleston court-martial will get a chance to challenge his trial judge, under a new ruling by a military appeals court.

The appellate court’s decision gives former Airman 1st Class Jimmy Hughes a crucial opportunity to determine whether the trial judge, a legally prominent Air Force colonel, should have recused herself from the 2011 case.

More broadly, the re-examination of this South Carolina court-martial might help illuminate how the military copes with highly sensitive sexual-assault allegations.

“This is a case in which commanders wanted to prove they were taking a hard stance against sexual assault accusations,” Hughes’ mother, Angela Price-Hughes, asserted in an email interview.

Price-Hughes added Friday that she was both optimistic and “cautious” after the decision by the Air Force Court of Criminal Appeals to order an additional hearing into her son’s case.

The so-called “DuBay” hearing, a post-trial fact-finding procedure unique to military justice, will examine the actions of Air Force Col. Dawn Eflein during the Hughes court-martial proceedings at the Charleston air base. Eflein has served as the Air Force’s chief trial judge and she’s the chief regional military judge for Europe. She has won national honors for her legal work.

In their appeal, defense attorneys note that Eflein seemingly played a dual role by taking a deposition from the alleged victim before the trial began. She’s a former nurse who trained at the University of Texas before she earned her law degree at the University of California, Davis, and became a judge. Eflein also is said to have made questionable comments about the alleged victim.

“We are unable to resolve the concerns raised by (Hughes) without ordering a post-trial hearing,” the Air Force appellate court noted in its decision, quietly issued Thursday.

The new hearing will unfold as military leaders and politicians pay increasing attention to sexual assault in the armed forces. In fiscal year 2011, the Defense Department recorded 3,192 accounts of alleged sexual assault, including 614 in the Air Force. Because sexual assaults often aren’t reported, officials concede that the true numbers are almost certainly much higher.

The heightened scrutiny prompts some to worry that the judicial playing field could tilt unfairly against defendants. Speeches by the Marine Corps commandant calling for tough action against perpetrators have led defense attorneys to charge unlawful command influence, while some officers approvingly cite convictions as a sign that the services are cracking down.

“Sexual assault is a crime and will not be tolerated in our Air Force,” Brig. Gen. Charles Q. Brown Jr. declared in a statement after Hughes’ conviction. “Furthermore, I cannot stress enough how important it is that real wingmen take action to prevent sexual assault.”

Hughes, who is now 28, was serving with the 31st Security Forces Squadron in Aviano, Italy, when the events in question transpired.

Another airman first class, a woman identified in court records only as DFJ, was a casual acquaintance of Hughes’. After a party, DFJ later told investigators that she had gone into her bedroom to go to sleep when she turned around to discover that Hughes had entered uninvited. The woman told investigators that Hughes raped and orally sodomized her.

Hughes elected to be tried before Eflein rather than ask for a court-martial panel in part because he thought she might be skeptical of the defendant, who had undergone mental health counseling.

“Just before trial, Judge Eflein had said something to the effect of, ‘Can we all agree that people with bipolar disorder are weird?’” one of Hughes’ original defense attorneys said in court documents.

Hughes subsequently wrote that he was “(led) to believe” that he had a “slam dunk” case with the judge, based on her alleged comments. After he was convicted, he suggested that the judge’s comments had “baited” him into selecting to be tried by a judge instead of a panel.

After his conviction in April 2011, which the Defense Department had designated as Sexual Assault Awareness Month, Hughes was sentenced to four years in prison and a dishonorable discharge. He’s confined at the Naval Consolidated Brig, Miramar, in California.

The follow-up hearing is due by March 1. The appellate court said that if scheduling proved “impractical,” Air Force officials could elect to drop the criminal case and take administrative action instead.


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