Panel selected for Naval Academy midshipman's court-martial on sex assault charges
By HEATHER MONGILIO | The Capital | Published: July 13, 2020
WASHINGTON, D.C. (Tribune News Service) — A panel of eight members set to hear the court-martial of Midshipman 3rd Class Nixon Keago was selected Monday.
Keago is charged with sexual assault, attempted sexual assault, obstruction of justice and burglary stemming from at least three different incidences, according to charging documents.
Member selection, the court-martial version of picking jurors, took 2½ days at the Washington Navy Yard, with the first two days dedicated to questioning each potential member and the half-day spent selecting who would sit on the panel.
Unlike a civilian jury, the panel is made of eight instead of 12 and all of the members have higher ranks than Keago.
That makes the panel not Keago’s peers, as a jury would technically be in civilian court, military law professor Kyndra Rotunda previously told The Capital.
Those who could be potential members were selected by the superintendent of the Naval Academy, as the commander of the convening authority, said military expert Eugene Fidell.
Most, if not all, of the selected members have some connection to the Naval Academy. Some are midshipmen mentors, instructors or assigned to the academy in some capacity.
On Monday, the government — attorneys Lt. Josh Won, Lt. Cmdr. Paul LaPlante and Lt. Cmdr. Chris Cox — and the defense — attorneys Lt. Cmdr. Andrea Kissner and Lt. Dan Phipps — had the opportunity to challenge, or argue, why a potential member should not be selected for the panel.
The government did not challenge any of the 19 potential members. The defense challenged 14.
Judge Capt. Aaron Rugh granted six of the challenges, meaning those people would not be considered for member selection.
Challenges often focused on the understanding of consent, prior professional relationships with witnesses, beliefs about sexual assault or a history of sexual assault.
Any potential member who was sexually assaulted or had a partner who was sexually assaulted was challenged by Phipps.
A partner with a history of sexual assault was not an automatic successful challenge. Phipps had to argue, and Rugh had to see, that the sexual assault continued to affect the potential member.
One potential member who the defense successfully challenged was dismissed, not due to his partner’s sexual assault, but rather his ability to understand the defendant’s right to not testify.
In arguing for one of the potential members, Cox said that sexual assault hisotry could not be automatic grounds for granting a challenge because it could result in a panel with no one with experience sexual assault, making it a biased panel.
“In fact, we choose our members based on experience,” Cox said.
Of the 19 potential members, seven of them were either sexually assaulted or had a partner who was sexually assaulted. Some were dismissed, but there are some members of the panel who have partners with histories of sexual assault.
The one potential member who was sexually assaulted was successfully challenged by Phipps, with the government agreeing to the challenge.
Once challenges were finished, the court used a random number generator to select members of the panel. The defense and government each challenged one potential member once the numbers were assigned, although no arguments were made for the challenge.
Members selected for the panel will be called by the government on behalf of Rugh. They did not physically come into the courtroom Monday.
There will only be one woman serving on the panel. There are some who had partners that were sexually assaulted. None of the panel members are Black.
Keago’s court-martial will resume at 9 a.m. on Tuesday.