August 2013 Soldier in Afghanistan Not Guilty of Rape after Trial
Attorney John L. Calcagni III represented a U.S. Soldier stationed in Afghanistan charged with forcefully raping a fellow service member. After trial by general court-martial a military panel found the accused Soldier NOT GUILTY of the charged sex offense.
The U.S. Soldier an Army Staff Sergeant deployed to Afghanistan last spring for his second tour. He previously deployed there for a period of one year several months prior to his current deployment. The Soldier was a Personal Security Officer (PSO) for a General Officer. He was assigned to a small unit known as a Personal Security Detachment (PSD) which provides personal security or body guard services to high ranking officers. While stationed in Kabul Afghanistan the Staff Sergeant shared a relationship with a female junior enlisted Soldier. Though the two had no direct duty or supervisory relationship they belonged to the same PSD. Their relationship began as one of mentor and mentee. It then progressed to a friendship and then ultimately to intimacy. Their intimate relationship involved almost daily encounters for several weeks.
Approximately one week after the couple’s last sexual encounter the female Soldier reported to her chain of command that she was sexually assaulted by the Staff Sergeant. Thereafter she cooperated with military law enforcement such as the U.S. Army Criminal Investigation Division (CID) and military prosecutors which facilitated criminal charges against the Staff Sergeant.
The Staff Sergeant was charged with four individual crimes or offenses under the Uniform Code of Military Justice (UCMJ): (1) Rape by Force in violation of Article 120 UCMJ; Fraternization for carrying on an intimate relationship with a junior enlisted Soldier in violation of Article 92 UCMJ; Adultery in violation of Article 134 UCMJ; and Making a False Official Statement in violation of Article 107 UCMJ. The rape charge stemmed directly from the female SoldierÓ³ allegation against the Staff Sergeant. The adultery charge stemmed from their relationship while the Staff Sergeant was legally married. The government charged fraternization to capture the couple’s prior consensual intimacy leading up to the rape allegation. Lastly because the Staff Sergeant lied to CID agents to cover up his intimate relationship with the female Soldier when questioned about rape he was charged with making a false official statement. After the four charges were preferred and subsequently investigated at a pretrial investigation pursuant to Article 32(b) UCMJ they were then referred for trial by general court-martial. Within days of being referred to trial the Staff Sergeant retained Civilian Military Defense Counsel Attorney Calcagni to defend him in this court-martial.
Defending the Staff Sergeant posed many challenges for Attorney Calcagni. Most obviously the Staff Sergeant and most of the witnesses for this matter were located in Kabul Afghanistan. This geographic displacement along with a time difference of 8.5 hours made attorney-client and other communications difficult. This challenge to communicating was further complicated by the governmentÓ³ secure telephone system and locations of different witnesses throughout Afghanistan. Telephone calls for witness interviews needed to be scheduled in advance and often conducted either in the middle of the night or wee morning hours.
Army prosecutors and detailed military defense counsel in this case were also stationed in Afghanistan. The military judge detailed to the case was assigned in Germany and therefore in a third physical location and in a third time zone. The differences in the parties’ locations and respective time zones presented similar logistical and communication challenges as experienced with witnesses. The parties worked together to best overcome communication challenges by scheduling teleconferences with the Court and amongst themselves during off hours. Because of the sensitivity and high security of the governmentÓ³ email system in a deployed environment the parties also communicated with multiple email addresses to ensure a continued stream of contact.
These challenges further impacted trial preparation such as strategizing; evidentiary issues analysis and the exchange and access of discovery materials between the parties especially between the government and civilian defense counsel.
To further complicate matters holding the trial in Afghanistan also presented significant witness production issues for the defense. In courts-martial the defense must request the government to produce witnesses for trial who it alleges are relevant and necessary to the merits and/or presentencing phase(s) of trial. After the defense made its witness requests here the government provided notice of its unwillingness to produce many of the defense-requested witnesses for trial. The government essentially denied the defense’s request for every witness not otherwise stationed in Afghanistan which included military and civilian character witnesses sought for both phases of trial. Further with respect to civilian witnesses requested by the defense the government claimed that it does not have subpoena power to compel civilians to travel from the United States to Afghanistan to testify at courts-martial. Many of the civilian witnesses identified by the defense also expressed an aversion understandably to traveling to Afghanistan.
Attorney Calcagni filed a series of motions before trial hoping to level the playing field between the government and the defense in this court-martial. The motions included two for a change in venue to transfer the case either to a more secure place in Afghanistan or from Afghanistan back to the United States for trial. The case was originally scheduled to occur at a small installation located in the center of Kabul. Because travel to and from this location can only be accomplished by ground convoys susceptible to attack the defense first requested that the trial be held on a larger more remote and secure installation in Afghanistan accessible by rotary and fixed wing aircraft which would be safer for the travel of witnesses attorneys and panel members. After further reflection on the issue of venue the defense believed having the trial sent back home to the United States would have obvious advantages such as better access to trial witnesses; ease of communications between the parties; easier access to evidence and discovery materials; physical colocation of the defense attorneys working on this case; and affording the accused the chance to meet and work with his civilian counsel in person on trial preparation as opposed to over the phone or video teleconference. The defense also cited the dangers of civilian counsel traveling into theater from the United States as contained in warnings and advisories from the U.S. State Department to U.S. citizens against travel to Afghanistan. Despite these arguments the Court denied the defense requests to change venue. Instead the Court rigidly held that the trial would proceed on the governmentÓ³ selected turf in Kabul Afghanistan.
Because of the logistical challenges set forth above with respect to preparation the defense filed a motion for a trial delay or continuance to afford Attorney Calcagni detailed military defense counsel and the Staff Sergeant more time to conduct trial preparation. The charges were preferred against the accused in mid-May 2013 and then referred for trial in mid-June 2013. Attorney Calcagni entered his appearance immediately after being retained in early July 2013. With the trial schedule previously set by the Court at the time of Attorney CalcagniÓ³ appearance the accused would only have a few weeks to prepare his defense. Because of the seriousness of the charges (i.e. rape carries a potential maximum jail sentence of life) and the logistical issues mentioned above Attorney Calcagni filed a motion for a trial delay. The Court denied this motion as it had the motions to change venue. Given these rulings the resulting tight timeline to prepare for trial and the logistical nightmare to do the same from the United States Attorney Calcagni and the defense team worked nearly around the clock for weeks to adequately prepare the Staff SergeantÓ³ defense. For a case that would normally take up to one year to meaningfully prepare for trial Attorney Calcagni was given nearly three weeks.
Attorney Calcagni proceeded with trial preparation notwithstanding the restrictions imposed upon him by the CourtÓ³ rulings and displacement from his client co-counsel and government witnesses. Trial preparation in all cases commences with the drafting of motions to suppress exclude or limit evidence at trial. Often referred to as “shaping the battlefield”, pretrial motions allow the parties to a court-martial to challenge evidence before the trial begins. When the Court rules on such motions in advance of trial the parties are then afforded a preview of the actual evidence they can expect to encounter at trial. Attorney Calcagni successfully filed such motions in this case to limit witness testimony exclude improper opinion testimony and suppress any and all evidence regarding the Staff SergeantÓ³ denial of an offer by CID to submit to a polygraph test. Attorney Calcagni filed additional pretrial motions to compel witnesses at trial whom the government denied; compel the production of evidence the government failed to disclose; the aware of jail credit the accused served for alleged unlawful pretrial punishment inflicted upon him by his Command; and lastly a motion to dismiss the case due to unlawful command influence because of public commentary by government officials including the President Secretaries of Defense and high ranking Army Officers in response to negative publicity about sexual assault cases in the military. The Court afforded the defense some relief with respect to these motions. For instance the Court granted most if not all of the defense’s evidentiary motions. It also ordered the government to produce the defense-requested witnesses. The Court awarded the Staff Sergeant with 14 days of jail credit because of unlawful pretrial punishment associated with his command seizing his weapon while deployed after the preferral of charges and then assigning him to guard Afghan Local Nationals while unarmed. The Court denied the motion to dismiss on the grounds that no unlawful command influence existed in this particular case.
Three days before trial the defense made a tactical decision for the Staff Sergeant to admit guilt to some of the charged offenses. He admitted guilty to charges of adultery fraternization and the making of a false official statement. The accused admittedly engaged in a consensual sexual relationship with the junior female Soldier. He had this relationship while he was married and then lied to CID to conceal this relationship when asked about it. Though there was no evidence to support the existence of this unlawful and adulterous relationship other than the alleged victimÓ³ claims Attorney Calcagni and the defense sought to capitalize on the strategic importance of the Staff Sergeant accepting responsibility for these actions and then informing the panel members of his admitted guilt before trial on a significantly more serious and potentially life-altering rape allegation. By pleading guilty to these offenses early it enabled the defense to narrow the panel’s focus at trial to the real dispute: whether the sexual intercourse at issue was forceful as alleged by the government or consensual as the defense maintained. Admitting guilt also enabled the Staff Sergeant to highlight his innocence to rape in the light of prior admissions of guilt as well as communicate his defense of consent without actually taking the witness stand at trial.
Trial began with opening statements wherein the government and defense outlined their respective cases. The government opened with its theory that the Staff Sergeant used his position as a mentor to sexually take advantage of a junior female Soldier. The government claimed that was new to the Army this was her first deployment and time away from home and as a result was experiencing significant difficulty adjusting to the deployment. The female identified with the Staff Sergeant and trusted in him to disclose and discuss her issues. The government alleged that the accused used this relationship and the femaleÓ³ vulnerabilities to segue into a sexual relationship. The government conceded an ongoing intimate relationship between the accused and female Soldier but that during this relationship the alleged victim drew the line one day when she denied the accused sex in the absence of a condom. The government alleged that the Staff Sergeant disregarded the female SoldierÓ³ wishes and with his strength pinned her against a corner grabbed her by the neck with his hand and forced her into having unprotected intercourse. The government claimed that based on these facts it would prove the accusedÓ³ guilt of rape.
The defense countered with its own opening statement. Attorney Calcagni reminded the panel that the Staff Sergeant had already accepted responsibility for his actions of fraternization adultery and making a false official statement but that he vehemently maintained his innocence as to rape. Attorney Calcagni relayed to the panel that they would learn of multiple intimate encounters between the accused and alleged victim which occurred almost daily for several weeks. Each encounter was conducted at night and in secret because both parties knew what they were doing was wrong and they did not want to be seen or detected. Not only were they of disparate rank and in the same unit but the accused was married and the alleged victim was engaged to be married with another member of their unit who was not deployed to Afghanistan. Attorney Calcagni explained to the panel how they would hear from the alleged victimÓ³ own mouth how her intimate relationship with the Staff Sergeant quickly progressed from hugging and kissing to holding hands to touching and groping one another’s genitals and then to intercourse on multiple occasions all of which occurred long before the alleged incident. Attorney Calcagni promised the panel that the only evidence of rape would be the alleged victimÓ³ word and nothing more. He asked the panel to carefully evaluate the credibility of the alleged victimÓ³ word which he informed them was riddled with contradictions inconsistencies and other indications of falsehood. He also informed the panel of the alleged victimÓ³ actions after the alleged rape such as requesting the morning after pill from the Troop Medical Clinic (TMC) the day after the alleged incident only to be told it was not available. Next he told the panel that only after fearing pregnancy did the victim report this matter not to authorities but first to her fiance whom she told she had been not raped or assaulted but instead Ô´alked into having sex.Ô At the fiancé³ urging the alleged victim finally reported the matter to her chain of command but then refused to undergo a sexual assault forensic examination by healthcare providers declined to provide a statement to CID investigators and expressed disinterest in learning of the status of the investigation of the accused that commenced with her rape allegations. In conclusion Attorney Calcagni asked the panel to apply their common sense and life experiences to the evidence to be presented and that if they did so they would return a verdict of not guilty at the end of trial.
The governmentÓ³ case consisted of three witnesses: the lead CID investigator; the female SoldierÓ³ supervisor to whom she reported the alleged rape; and the alleged victim. Each witness first testified in response to questions posed by the prosecutor and then was cross-examined by Attorney Calcagni. The CID investigator testified that he received a report of a sexual allegation. Following that report he commenced his investigation which consisted of four things: interview of the Staff Sergeant; interview of the alleged victim; canvass interviews of others who may have observed or come into contact with the Staff Sergeant and/or female Soldier; and crime scene investigation. On cross-examination however in response to CalcagniÓ³ questioning the agent confirmed that the only evidence of the alleged rape was the female SoldierÓ³ word. The crime scene investigation yielded no evidence of a crime. Of the ten or more canvass interviews conducted no one saw or witnessed anything inappropriate between the Staff Sergeant and junior female Soldier. These witnesses also observed nothing unusual or out of the ordinary about the femaleÓ³ behavior in the one week period between when she claimed the rape occurred and when she actually made the rape allegation.
The governmentÓ³ next witness was the female SoldierÓ³ supervisor to whom she made the report. The supervisor first described the femaleÓ³ poor duty performance in theater; inability to perform her assigned job as a driver necessitating reassignment to other duties; her history of infractions subpar performance and history of verbal and written counseling since arriving in Afghanistan. The supervisor also emphasized her poor performance back in garrison before the deployment and most recently the difficulties she experienced with adjusting to being deployed. Lastly he testified about the victimÓ³ report of sexual assault to him; the circumstances of the report; and his actions in response including taking the alleged victim to the chaplain; notifying CID; coordinating her transfer to the hospital for a forensic examination; and ultimately her redeployment back to the United States. On cross-examination the supervisor admitted that the alleged victim was his worst Soldier; that he did not want to take her on the deployment; that she had been nothing but problems since arriving in theater; and had implied on multiple occasions that she wanted to go home. The supervisor also provided testimony that he interacted and worked with the alleged victim 6-8 hours a day; that they worked in the same office together; and had their desks next to one another. Given his observations of her and opportunity to observe her he testified to not noticing anything unusual or out of the ordinary in the week period between the date she claimed the rape occurred and the date that she reported it. The supervisor also testified that the accused entered their office almost daily during this time period and that he observed nothing inappropriate out of the ordinary or unusual between them. When asked about her reporting the supervisor informed the Court that the alleged female made several reports to him over time. Each time new information was revealed that was not previously disclosed. The supervisor also noted inconsistencies and contradictions in the femaleÓ³ reports. As a former military police investigator the supervisor testified on cross-examination that he was suspicious of the femaleÓ³ allegations and did not want to be in her presence alone.
The government last called the female Soldier. She testified on direct examination as expected. She relayed her background information and difficulty with the deployment. She then went on to outline how her relationship with the Staff Sergeant began as a mentor and then progressed into a friendship and ultimately a romantic relationship. This included her admitted hugging handholding touching one another in a sexual manner and even prior occasions of intercourse before the alleged rape. On the night of the rape she testified that sex between her and the accused began as consensual. They met up in their routine fashion at their designated nighttime smoke spot. Prior to meeting the accused told her he had a condom and she replied that she was not wearing any underwear. When they ultimately met up their normal intimacy routine of hugging kissing and touching occurred. The female then removed her belt and pants so she and the Staff Sergeant could have intercourse which she said began consensually and with use of a condom. However she claimed that the event progressed into a rape and nonconsensual contact when the accused removed the condom he had been wearing and wanted to resume sexual intercourse in an unprotected manner. She testified that she protested that she did not want to have sex without a condom and proceeded to turn around. She claimed the Staff Sergeant continued to hug kiss and touch her all the while reassuring her she would not get pregnant and that everything would be ok. She also said he physically turned her around in order to resume sex by penetrating her from behind while standing. The female stated that this back and forth of protesting and reassurance along with turning and being physically turned back occurred three times. Finally she claimed that because the accused was not listening to her she gave in by allowing him to resume the intercourse so she could just get out of there. She testified that this phase of the intercourse occurred over her objection and without her consent.
On cross-examination the victim told a more detailed version of events upon questioning by Attorney Calcagni. She first answered questions about her engagement and that she was engaged at the time she deployed and thereafter began a consensual relationship with the accused. She claimed that though not physically attracted to the Staff Sergeant he filled voids in her life created by the distance between her and her fiancé® She admitted that all the hugging kissing touching and even sex with the Staff Sergeant filled the voids in her life while deployed brought her comfort and satisfied her desires for companionship and intimacy. She also admitted to wanting to keep their relationship a secret from the chain of command and her fiance who she intended to return to after the deployment and with whom she was still engaged. The female Soldier testified that she did not know the Staff Sergeant before the deployment and had no intentions of continuing to know him after the deployment. Anything that occurred between them she intended to keep a secret and limit it to the time while deployed. As for the sex on the night in question which she claimed was rape she conceded that she did not verbally or physically attempt to resist the accused. She never yelled at him screamed for help called out or so much as even raised her voice knowing full well that others were in the area and would have heard her. Physically she also did not attempt to repel the Staff Sergeant in any manner such as pushing punching slapping hitting kicking biting or scratching him. Though trained in PSD and close-quarters combat takedowns and how to subdue an attacker she made no effort to employ this training against the accused. The female also acknowledged that she was in possession of her issued service weapon on the night in question an M9 pistol which she never reached for displayed or employed in any way to repel the accused. She also admitted that the accused did not force threaten or coerce her to do anything against her will. She was also not manhandled by the accused. When turned around by him she characterized his actions as guiding her around not forcefully moving her. In terms of his hand on her neck she admitted that this was not done in a harmful or threatening manner did not cause any pain or restriction in her breathing and that she never asked him or attempted herself to move his hand. Instead the female Soldier claimed that she was “talked into sex” by the accused. She gave in to his efforts to resume sex in an unprotected manner. After doing so she admitted to kissing him; making sounds and heavy breathing consistent with sexual pleasure; and when the event concluded she told the Staff Sergeant that he caused her to experience an orgasm. The two then mutually hugged kissed and parted ways.
Attorney CalcagniÓ³ cross-examination continued with the aftermath of the alleged rape. This focused on the femaleÓ³ failure to say or report anything to her chain of command or authorities for nearly one week. When she ultimately decided to say anything her report was motivated by her fiance who pressed her to tell someone of the alleged rape. The female also conceded that when she first reported this incident to her fiance which she wanted the panel to believe was a rape she characterized it as her having been “talked into sex” by the accused. She admitted that the timing of this report to her fiancé¡·as after requesting and being told by the TMC that the morning after pill was not available. To establish and highlight the female’s motive to fabricate she and her fiance became engaged to be married after approximately four weeks of dating. The female Soldier testified that because her parents never married and her mother had unsuccessfully married four times she was aggressively seeking and pursuing a long term relationship with a man such as the one she had entered into with her fiancé® She also admitted her insecurities regarding the longevity and future of that relationship and that her consensual relations with the Staff Sergeant remained hidden from her fiancé¡¦or fear that his knowledge of them could destroy their future relationship.
After the female Soldier ultimately reported the alleged rape to her supervisor she admitted to then being uncooperative with CID. She declined to participate in a medical examination designed to collect evidence of rape and/or sexual assault; refused to provide a statement to CID agents; and declined to receive period updates or briefings regarding the status of the CID investigation being conducted on her behalf.
Lastly Attorney Calcagni questioned the female Soldier on the various statements she provided about the alleged incident none of which were made until one week or more after when she claimed she was raped. The female Soldier made multiple verbal reports to her supervisor. Two weeks later after finally deciding to cooperate with CID she typed her own statement and delivered to one of the CID agents working the investigation. A month or so later she testified under oath at an Article 32(b) pretrial investigation and then lastly she testified at trial. Attorney Calcagni focused on the inconsistencies among the femaleÓ³ various statements. With time her story acquired more facts and details. With each subsequent statement she added in or revealed new facts and information not previously disclosed. In conclusion she admitted contrary to common sense that over time her recollection of what she claimed to have occurred seemed to get better with time. She also admitted to not being completely forthcoming with her fiancé¡³upervisor and perhaps CID when making her reports. With this Attorney Calcagni concluded his cross-examination and not long after the government rested its case-in-chief without presenting any additional evidence or witnesses.
Attorney Calcagni and the defense team put on six witnesses in the Staff SergeantÓ³ defense double the number called by the government. First the defense called a Sergeant who formerly served as the Non-Commissioned Officer (NCO) in charge of a Troop Medical Clinic (TMC). This witness testified that he knew both the Staff Sergeant and female Soldier. Because they were all stationed on a small base the Sergeant claimed that everyone knew everyone. He never noticed anything inappropriate or unusual between the accused and alleged victim. The Sergeant further testified that the female Soldier came in to the TMC the day after she claimed to have been raped and requested the morning after pill. He informed her that the pill was unavailable. Her reaction was one of disappointment. She calmly left without asking any additional questions or reporting that she was allegedly raped or sexually assaulted. A few days later the Sergeant saw the female Soldier around base. He noticed nothing out of the ordinary or unusual about her behavior. This observation was made by him of her during the seven day period between when she claimed to have been raped and when she reported the incident to her chain of command.
Second the defense called a nurse practitioner (NP) who worked at the hospital where the alleged victim was taken after reporting rape to CID. The NP described the female SoldierÓ³ demeanor as calm and cooperative. She explained to the female Soldier two types of examinations available to her: a medical examination designed to detect and treat injuries from an alleged sexual assault which included prophylactic medications against possible pregnancy and sexually transmitted diseases and a forensic examination which included all aspects of the medical exam but further examination specifically designed to gather evidence of rape or sexual assault. The NP testified that after advising the female Soldier of these options she opted to only undergo the medical exam and declined the forensic exam designed to gather evidence.
Third the defense called another CID agent who participated in this investigation. The agent testified that as part of her investigation she attempted to interview the female Soldier for purposes of acquiring a statement regarding what allegedly occurred between her and the Staff Sergeant which she claimed was rape. However the female Soldier was uncooperative with CID and declined to provide a statement. Further the agent testified that she advised the Soldier of Army and CID policy to advise alleged sexual assault victims of their right to receive periodic updates and briefings regarding the status of the underlying investigations. This agent testified that the female Soldier specifically declined to receive any updates of briefings in this case.
Fourth the defense called a ranking officer who worked on the base where the accused and alleged victim were stationed. This witness was well-acquainted and familiar with the female Soldier. The officer testified as to her knowledge that the female Soldier was experiencing difficulties related to the deployment and was often withdrawn. One day before the alleged rape she observed the female Soldier crying presumably about deployment adjustment issues. The officer offered to help the female Soldier by talking with her but the female declined any assistance. In the seven days between when the female claimed to have been raped and her reporting the alleged incident to her supervisor the officer saw her about the installation. She testified to observing nothing unusual or out of the ordinary about the alleged victimÓ³ behavior during this time.
Fifth the defense called a former roommate of the alleged victim. This Air Force Sergeant was randomly assigned to live with the female Solider on the deployment. She testified that though the two were not close friends she observed the alleged victim for a few hours each night when the two retired to their quarters. During this time period she had ample opportunity to observe the female SoldierÓ³ demeanor and behavior. She described the female as normally being quiet and withdrawn. The Air Force Sergeant testified to observing the female SoldierÓ³ demeanor and behavior during the seven day period between the alleged rape and her report of it. During this time they continued to overlap each night in their quarters. The Air Force Sergeant did not observe anything unusual or out of the ordinary about the alleged victimÓ³ behavior during that time. Further the alleged victim never reported or mentioned rape or sexual assault to her at any time.
Sixth and lastly the defense called the alleged victim’s fiance. This Corporal testified about his romantic relationship and engagement to her. He confirmed how the two met while attending PSD School dated for four weeks and then got engaged. Two weeks later the female Soldier deployed to Afghanistan while he remained in the United States. He further testified that he had some close friends in the unit to which he and his fiance belonged. As far as he knew these close friends knew of his engagement to the alleged victim just as she knew of the Corporal’s close friendships. The individuals with whom the Corporal was good friends deployed to Afghanistan with the female Soldier. Attorney Calcagni established this information in an effort to develop the female SoldierÓ³ potential motive to fabricate. That is if her fiance’s friends discovered either her ill