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Jury selection for Naval Academy midshipman's sexual assault trial shows steps to prevent coronavirus spread

Third Class Midshipman Nixon Keago has been charged with sexual assault, attempted sexual assault, burglary and obstruction of justice for incidents at the Naval Academy in February, September and October 2018 and in New York in May 2019.

U.S. NAVY

By HEATHER MONGILIO | The Capital, Annapolis, Md. | Published: July 10, 2020

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ANNAPOLIS, Md. (Tribune News Service) — The court-martial against Naval Academy Midshipman 3rd Class Nixon Keago will feature far more breaks than normal.

After each potential member of the panel that would be the court-martial equivalent of a jury was questioned by the judge, defense and government Thursday, Judge Capt. Aaron Rugh would call for a five-minute recess so parts of the courtroom could be cleaned and aired out.

Such is a court-martial during a pandemic.

Thursday, the first day of the trial, focused on the questioning of 10 potential members for an eight-member panel that will consider the case against Keago, who is charged with sexual assault, attempted sexual assault, obstruction of justice and burglary. .

Rugh and the counsel for both sides had a chance to question each potential member. Lt. Cmdr. Chris Cox and Lt. Cmdr. Paul LaPlante took turns doing the questioning for the government, while Lt. Daniel Phipps did the questioning for the defense.

Then, once questioning finished and the potential member left the courtroom, the cleaning began. Other steps to prevent the spread of COVID-19 included almost everyone wearing masks in the courtroom, Rugh told each of the potential members.

Rugh allowed some exceptions. During the questioning, Rugh instructed potential members to remove their masks.

Keago had the option to remove his mask. The counsel and Rugh may remove their masks when safe. Witnesses will not wear masks when testifying, Rugh said.

Once the members deliberate, they will go to a much larger room where they can social distance, the judge said.

The COVID-19 pandemic caused the Keago trial to be delayed once. In a pretrial hearing on July 9, defense attorneys argued that it should be delayed again due to concerns about the number of cases of the disease caused by SARS-CoV-2.

COVID-19 cases are soaring in several states across the country with Arizona and Florida both seeing record increases in daily cases.

But that is not the case in the areas around the Navy Yard, where the trial is held.

Washington, D.C. added 39 cases Thursday, according to DCist, bringing the total in the district to 10,679. Maryland added 586 cases, an uptick since Wednesday, while Virginia added 613, a slight decrease, according to the article.

Rugh dismissed the defense’s concerns about surging cases due to the lack of case increases in the immediate area.

In his dismissal, Rugh raised concerns about a speedy trial for Keago, who until the trial, had been held in pretrial confinement at Naval Consolidated Brig, Chesapeake. During the trial, he will be held at the City of Alexandria’s jail.

The judge said that the midshipman would likely be safer in the courtroom than in the jail and questioned the fairness of furthering Keago’s pretrial confinement.

Phipps also argued that the mitigation methods used to help prevent COVID-19 could affect Keago’s ability to have a fair trial due to members thinking about potential health worries instead of focusing on the trial.

Rugh dismissed the argument saying Army, Navy and Marines have held member trials during the pandemic.

Courts-martial are different than civilian trials in part because the members are selected by the commander of the convening authority — in this case, the superintendent of the Naval Academy — said Kyndra Rotunda, professor of military and international law at Chapman University.

Rotunda, a former Army Judge Advocate General’s Corps officer, said the argument that members could not pay attention is a bit of a stretch.

It is their job, when selected, to be a member. It is their duty, she said.

“I think that’s a Hail Mary,” Rotunda said. “That’s just really your reach, especially when you consider these panel members, are service members. If anybody is able to sit still and listen, eight, nine, 10 hours a day with this fear of pandemic, it’s probably service members because they’ve just been soldiering on.”

Phipps also argued that if someone does say they are concerned about the pandemic, they might not be selected despite otherwise being an ideal member. This, Phipps argued, could prevent Keago from having a fair court-martial.

Rugh disagreed.

“You’ve made so many logical leaps there, I don’t know where to start,” the judge said during the hearing.

The trial, which began Thursday, as scheduled, was already affected by COVID-19.

A witness tested positive for the disease, and, as of Thursday, was still positive. Rugh had said at the hearing the trial would continue even if the witness could not attend.

“If someone dies, it doesn’t mean we continue the case until they are reincarnated,” Rugh said. “We follow a process.”

Questioning members

Rugh, individually, asked each of the potential members about health concerns affecting them or their families. He also asked if they understood the mitigation methods.

For the most part, those were the only questions asked about COVID-19.

Rugh also asked if the member knew Keago, which no one did, or if they knew any witnesses. Often, the member had some connection to a witness, whether because they taught the student, mentored the student or another reason.

Members were also asked if they had or knew anyone who had been accused of committing a crime similar to the charges or were a victim of a similar crime. Members also answered whether they knew any details of the case previously.

Rugh also asked about bias and preconceived notions about sentencing following a conviction.

As part of COVID-19 mitigation methods, potential members had to fill out a questionnaire from a while ago, and a supplemental questionnaire, answered a couple days ago.

LaPlante, and sometimes Cox, for the government and Phipps, for the defense, questioned the potential members based on their answers to the questionnaires and responses to attorneys. All questions, by counsel and Rugh, were meant to help decide members for the panel.

Questions asked by the attorneys tended to focus on affirmative answers to questions about sexual assault.

Have you heard or read anything about sexual assault? Have you heard comments about sexual assault from senior leadership? Do you discuss sexual assault outside of training? Do you know anyone who has been sexually assaulted? Does the Naval Academy or military have a sexual assault problem?

Each “yes” prompted follow-up questions from the attorneys. The government attorneys tended to focus on affirmative answers on the questionnaire, while Phipps focused on each person’s response to government questions.

Phipps always began by introducing himself, his co-counsel and apologizing if he sounded muffled due to his mask and, in his words, his faint British accent.

There were several questions also asked about the credibility of witnesses, automatic and minimum punishment for sexual assault crimes. There was also a question about if multiple witnesses corroborating a story gave an original testimony additional weight.

The government attorneys, and sometimes Phipps, also focused on whether a potential member wanted Keago to testify and felt that the midshipman should testify. Keago, as the defendant, has a constitutional right not to testify.

After the government and defense attorneys finished their questions, Rugh also asked his own follow ups.

Before dismissing the potential member, Rugh asked if that there was any reasoning, after questioning, including due to health and safety concerns, that they could not be a fair member.

By the end of the first day, seven male and three female potential members had been questioned, most, if not all, staff at the Naval Academy. There were no Black potential members questioned Thursday, despite the defendant being Black.

Member selection was to resume at 9 a.m. Friday.

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