July 2012 United States Military Academy (USMA) Cadet Charged with Sexual Assault

The government charged a third-year student or Yearling at the United States Military Academy (USMA) West Point New York with multiple charges of sexual assault against a fellow cadet. These charges were referred for trial by General Court-Martial. The accused cadet offered to plead guilty to the lesser included non-sex offense of Assault Consummated by Battery. A military judge accepted this plea and after a sentencing hearing ordered that the cadet receive a written reprimand but no further punishment.
The third-year cadet (hereinafter Ô´he accusedÔ© was alleged to have sexually assaulted another female cadet while on a class field trip. The two cadets sat next to each other in the back row of a 12-passenger van. The van was otherwise full of West Point Cadets and operated by a faculty member. The two cadets the accused and the victim were no more than classmates and had only known each other for the academic semester. They had no prior friendship or romantic relationship. They also had never socialized outside of the classroom. All of their interaction and communication was professional in nature and centered on their class. On the date in question the class to which they belonged took a day-long field trip from the West Point military academy to a nearby Buddhist monastery. The accused and victim sat next to one another in the back row of the van both on the way to the monastery and on the return trip back to the academy.

All personnel on the van were asleep during the return trip except the driver and the accused. The victim and accused sat next to one another in the rear of the van. The accused sat to the left of the victim and closest to the window. The victim who was asleep sat to the accusedÓ³ right. Next to the victim on her right sat another female cadet who was also asleep. The victim alleges that she woke up to find the accusedÓ³ hand inside the back pocket of her pants and caressing her buttocks. She shifted her body away from him and towards the female cadet sleeping to her right without opening her eyes or saying a word. She then alleged that she felt the accusedÓ³ hand caress her inner thigh. In response she sat up straight but again did not open her eyes or say a word. Lastly she alleged that the accused attempted to place his hand in hers but that she pulled her hand away. After the van returned to the academy the cadets parted ways without exchanging any words.

In the following days the accused sent three separate emails to the victim. In each message he apologized for his conduct and sought the chance to apologize to her in person. She never replied. The accused also left a voice message on the victimÓ³ cell phone also seeking the chance to apologize in person; however she never returned his call. The victim reported what occurred on the van as well as the accusedÓ³ follow-up communications to her chain of command an Army chaplain and the Army Criminal Investigation Division (CID). As a result an investigation ensued. Thereafter the government charged the accused with three separate counts of Sexual Assault and referred these charges for trial by General Court-Martial.

The accused and his family hired experienced military Defense attorney John L. Calcagni III for representation in this unfortunate event. Attorney Calcagni began his representation of the accused by acquiring and analyzing the strength of the governmentÓ³ evidence against him. The evidence consisted of the victimÓ³ timely reports to the chaplain chain of command and CID; the accusedÓ³ admissions in his emails and voicemail to the victim; and an overall lack of motive or reason to fabricate by the victim. After conducting a thorough review Attorney Calcagni advised his client to enter into a plea agreement with the government opposed to proceeding to a contested trial before either a military panel or a military judge.

Attorney Calcagni with the accusedÓ³ permission negotiated with the government regarding the terms of a pretrial agreement. He successfully persuaded the government to agree to allow the accused to avoid a conviction of a sex offense. Sex offense convictions and their resulting registration requirement are considered lifelong stigmas from which offenders are prejudiced and discriminated against by society. Because of this Attorney CalcagniÓ³ primary objective at the outset of his representation was for his client to avoid a criminal conviction for a sex offense. Attorney Calcagni convinced the government to allow the accused to plead guilty to the lesser included non-sex offense of Assault Consummated by Battery. He also convinced the government that no matter the sentence to be imposed after trial the General Court-Martial Convening Authority would not approve or impose a sentence against the accused as it relates to confinement in excess of ninety (90) days. This agreement was reduced to writing and signed by the parties.

With a pretrial agreement in place Attorney CalcagniÓ³ next objective was to prepare a sentencing case on his clientÓ³ behalf that would place him in the best possible position to avoid jail and a punitive discharge (i.e. dismissal) from USMA the U.S. Army and further military service. Attorney Calcagni worked with his client to interview dozens of the accusedÓ³ supporters to include family members many of whom were military service members; faculty members; fellow cadets civilian friends; and the accusedÓ³ counselor to whom he self-referred for therapy following the assault. Attorney Calcagni also traveled to West Virginia to spend time with and interview the accusedÓ³ family; to see where the accused lived and was raised; and to acquire other sentencing evidence.

Attorney Calcagni encountered a lot of love and compassion for the accused from all of his supports who were both males and females alike. With the assistance of the accused and his many supporters Attorney Calcagni assembled a large collection of sentencing evidence which he compiled into a book or pamphlet known as a ԇood Soldier PacketÔ for presentation to the Court. The accusedÓ³ Good Solder Packet included statements of support; academic information which showed the accusedÓ³ top performance and class rank (6 / 248) in high school; DeanÓ³ List performance at USMA; and CommandantÓ³ List at the United States Military Academy Prepatory School (USMAPS); military performance such as being the distinguished graduate at U.S. Army Basic Training and USMAPS; his counseling attendance; military awards; photographs; and other information.

On the day of the court-martial which was before a military judge alone the proceedings began with the guilt phase of the case of the proceedings. The accused pleaded guilty to Assault Consummated by Battery without incident. The military judge accepted his plea and proceeded to a sentencing hearing.

At a sentencing hearing the government is allowed to first present evidence of aggravation regarding the accusedÓ³ offenses. The Defense is allowed to challenge and rebut this evidence as well as cross-examine government witnesses. Once the government concludes it presentation of evidence the Defense is then afforded the chance to offer evidence of extenuation and mitigation regarding the accused in general as well as his offenses. The government is allowed to challenge the Defense evidence and cross-examine witnesses. Once the parties conclude their respective presentations of evidence each side is allowed to make a sentencing argument to the Court.

In this case as in all sentencing cases the government began with its case of aggravation which was comprised of two witnesses: the accusedÓ³ tactical officer or supervisor and the victim both of whom Attorney Calcagni cross-examined. The government first presented the supervisor who testified very briefly that in his opinion the accusedÓ³ military service had been poor. On cross-examination by Attorney Calcagni the supervisor admitted that he was unfamiliar with: the accusedÓ³ exceptional academic record and performance; the military awards he had received to include Air Assault School and the German Proficiency Badge both which the accused earned in the same summer; and his placement as distinguished honor graduate of both basic training and USMAPS. The supervisor further admitted that most of his interactions with the accused involved the pending court-martial which formed the basis of his biased opinion.

Next the government presented the victim who testified about how the accusedӳ actions impacted her life. She testified that as a result of his actions she could no longer trust others to include men and fellow cadets. She also testified how her intimate life with her fianc顨ad been destroyed and that all aspects of her cadet life were adversely affected to include academics leadership and athletics. Attorney Calcagni cross-examined her to confirm that she never set verbal or physical boundaries for the accused after discovering his hand on her body; never replied to any of his apologies; had successfully graduated West Point since the incident and even participated in competitive athletic events during the weekend of the assault; and lastly that she found the accusedӳ personality to be quirky and nerdy. The government offered no further evidence in aggravation.

Attorney Calcagni on behalf of the accused then presented the Defense case of extenuation and mitigation. The Defense case consisted of a Good Soldier Packet which is described above and the testimony of six witnesses: the accusedÓ³ father a U.S. Army Sergeant First Class; the accusedÓ³ mother a former Soldier; the accusedÓ³ sister a U.S. Army Captain and West Point graduate; two field grade female officer faculty members from West Point; and the accused himself. In essence the family witnesses all testified that the accused was someone who embodied the Army Values and had so embodied them long before joining the Army or attending West Point. The witnesses also testified to the accusedÓ³ lifelong goal of joining the Army which began when he was in junior high school and later materialized with him enlisting and attending basic training as a high school student and later matriculating at USMAPS and USMA. These witnesses all testified that the accused though 20 years-old have never had a girlfriend and had never been romantically sexually or intimately involved with a woman. The field grade officer female faculty members described the accused as the consummate gentleman but somewhat immature in terms of male-female relations. Everyone testified that the accused made a serious mistake or lapse in judgment from which he had learned a great deal and had and had grown stronger. They also opined that despite this sole instance of misconduct the accused had the potential to still make an exceptional military officer if retained in the Army and at USMA. The accused echoed the testimony of his witnesses and made an oral apology in open court to both the victim and all others whose lives were impacted by this case. After the accused testified the Defense concluded its case of extenuation and mitigation.

After the presentation of evidence both parties presented argument and sentencing recommendations to the Court. The government argued for a sentence consisting of six months of confinement and a dismissal from the U.S. Army and academy. Attorney Calcagni artfully rebutted this argument and asked in the alternative for a written reprimand but no jail or dismissal. The Court then closed for deliberations. The military judge returned nearly one and one-half hours later with her verdict and sentenced the accused to be reprimanded only Ö the sentence recommended by and argued for by Attorney Calcagni. The military judge did not impose any confinement or a dismissal. This outstanding result is considered a victory for the Defense. Congratulations to this fine cadet and best of luck to him throughout his military career.