Navy Commander charged with Rape, Sexual Assault and Indecent Acts
A Navy Commander with 29 years of military service was criminally charged and sent to trial by General Court-Martial. The government charged him as follows: one charge and four specifications of both Rape and Oral Sodomy by Force in violation of Article 120, Uniform Code of Military Justice (UCMJ); one charge and three specifications of Indecent Acts in violation of Article 134, UCMJ; one charge and two specifications of Assault in violation of Article 128, UCMJ; and one charge and five specifications of Making False Official Statements in violation of Article 107, UCMJ.
The charges initially stemmed from allegations by the Commander’s daughter that he sexually assaulted her on various occasions between ages of 2-7 by placing his fingers into her vagina. She also alleged that he choked her with a belt rendering her unconscious, forced her to watch pornography and masturbated in her presence. The daughter made these allegations in a therapy environment and claimed to have just remembered the incidents at or near the time of her report. Following these untimely allegations by his daughter, the Commander’s ex-wife then accused him of raping her on two separate occasions, separated by a few years, during their marriage. She claimed that these alleged rapes occurred years prior to her reporting. Several months after the ex-wife’s allegations, the daughter lodged a second set of allegations against her father claiming the Commander forcefully raped and made her perform oral sodomy on him multiple times per week for a period six months. The alleged victims relayed their complaints to law enforcement. The ex-wife did not make any allegations against her husband until the daughter first accused him of wrongdoing. Nearly one year after her first set of allegations, which she provided to police under oath, the daughter made a second set of allegations claiming conduct that allegedly occurred much closer in time to the reports of rape and sodomy, but which she claimed to have only recently remembered.
The Commander met with agents of the Naval Criminal Investigative Service (NCIS) on two occasions in the course of its investigation into both his daughter and ex-wife’s allegations. The Commander spent his entire adult life in the Navy so he trusted NCIS and its law enforcement personnel. During his first meeting with NCIS, the Commander denied any wrongdoing whatsoever as alleged by his family members. He also inquired about the possibility of taking a polygraph examination or lie detector test in order to clear his name. The NCIS Agent with whom he met could not offer such a test at the time, but promised to inquire into future testing possibilities. One week later, the Commander returned to NCIS upon an invitation to take the polygraph examination. He sat for the examination and subsequently for what is known as a post-polygraph interrogation. The entire process lasted for approximately seven hours. The first hour or so was related to the actual polygraph test while the remainder of the time was spent during a secretive interrogation that was deliberately not recorded or witnessed by anyone other than the Commander the his interrogator. The end product of this secretive event was NCIS’s collection of a type written statement by the Commander confessing to some of his daughter’s allegations. This confession ultimately led to the Commander being criminally charged and referred for trial by General Court-Martial.
The Commander retained Attorney John L. Calcagni III to represent and defend him against these heinous charges. When the Commander first retained civilian counsel, he prefaced his consultation by claiming his innocence, followed by revealing his prior confession to NCIS to some of the charged crimes, to include sexually assaulting his daughter. The Commander claimed that he provided the confession against his will and in response to pressures exerted on him during the post-polygraph interrogation. The Commander went to Attorney Calcagni because he sought counsel who was familiar with and versed in the concept of false confessions. Attorney Calcagni had encountered the subject of false confessions earlier in his career while working as prosecutor on active duty in the U.S. Army. Hence, he was educated in the subject matter, was familiar with the landscape with respect to the world’s most qualified false confessions experts, and knew how to develop a winning strategy to defend the Navy Commander.
After the Commander was criminally charged, his case first proceeded to a pretrial investigation. These investigations are governed by Article 32 of the Uniform Code of Military Justice and are designed to serve two important objections. First, the government is required to present some, if not a majority of its evidence to a neutral and detached party called an Article 32 Investigating Officer. Appointed Investigating Officers are tasked with receiving and analyzing the evidence to determine if a reasonable basis exists to support the charged offenses. Similar, but not quite equal to a grand jury proceeding, evidence may be presented by both the government and defense to persuade the Investigating Officer to form conclusions regarding the presence or absence of a reasonable basis to support the charged offenses. If the Investigating Officer concludes that probable cause or reasonable grounds exist for the charge(s), he then recommends how the charges should be adjudicated: judicially or administratively. Second, Article 32 pretrial investigations proceedings serve as a an important discovery tool for the defense in that the government is forced to preview its case and witnesses may be called and cross-examined under oath in preparation for trial.
In this case, the government sought to present the pretrial testimony of the Commander’s daughter and ex-wife. Because these witnesses’ complaints were the main bases for the charges, the government sought to introduce their pretrial testimony. The defense similarly requested their presence for purposes of cross-examining and confronting the Commander’s accusers, even in this limited proceeding. However, both complaining witnesses failed to attend. As civilian witnesses, the government could not subpoena them to attend and testify. They were solely invited as required by law, but deliberately failed to attend. In their absence and over the defense objections and request for dismissal, the Investigating Officer exercised his discretion to consider the witnesses’ prior written and recorded statements in light of their apparent unavailability. The defense objected because of the inability to confront, cross-examine or even defend against the accusers’ prior written statements. Notwithstanding, the Investigating Officer accepted the out-of-court statements and relied upon them to support his finding that probable cause or a reasonable basis existed to support the charges against the Commander.
The next phase of the case involved discovery and motions. Attorney Calcagni pounded the government with discovery requests successfully obtaining the complaining witnesses’ email history, cellular phone call and text message history, and medical history, to include physical and mental health records. The Commander’s daughter had a long history with mental health issues. She began having suicidal ideations years prior to accusing her father of sexual assault. She also had sexual identity and orientation issues. The girl was homosexual. Her parents, both conservative and devout Christians, failed to accept her sexuality or lifestyle choices, thereby causing and/or exacerbating her underlying mental health issues. She also had a history of underage alcohol and drug abuse, which the records substantiated. She attempted suicide on two occasions for which she was treated in both traditional and mental health hospitals. Attorney Calcagni obtained all of these records through the discovery process, which proved to be treasure troves of information for use against the daughter at trial.
Attorney Calcagni also managed to obtain the daughter’s former laptop computer and personal cellphone. He then sent these items off for forensic testing and analysis revealing years of email history, text message communications and Internet browsing history. Many people suffer from the common misunderstanding that if you delete something from either your phone or computer, it is forever lost and destroyed. In many instances, this is not true. Digital forensic examiners are able to recover deleted information with the use of specialized equipment and software. Attorney Calcagni and his firm have strong professional ties to and experience working with the digital forensic community. As a potential avenue of discovery and pretrial investigation in this case, he sent off the daughter’s computer and phone for analysis, which revealed even further information to be used against her at trial, to include her own self-pornography videos.
A final part of the defense pretrial investigation was to obtain the government’s polygraph data from the Commander’s examination and sent it for independent analysis. The government did not readily turn over these materials. However, after being compelled to do so via the court, the materials were then disclosed. The defense had them independently reviewed by a neutral polygraph examiner. This third party examiner opined that the polygraph test data, which the NCIS agent interpreted as consistent with deception, showed that the Commander was being truthful.
Another aspect of pretrial litigation in this case involved motions seeking court permission to use various experts at trial. The government fought the defense at each turn with respect to its expert requests. In the end, the defense fortunately prevailed in this regard. The most important pretrial victory for the defense was a ruling from the court allowing the use of a false confessions expert. This expert was absolutely crucial to the defense’s ability to explain and confront the Commander’s incriminating confession to NCIS whereby he confessed to sexually abused his daughter. The particular expert selected by the defense was also familiar with the concept of pseudo memories, which are therapy induced memories of events that never actually happened, and the scientifically disproven, formerly accepted, psychological theory of repression. All of these topics proved to be important to presenting the Commander’s defense. Securing the services of a single expert who was well versed in each of these areas proved to be critical to winning this case at trial. The defense team also successfully engaged the services of a pediatrician who specialized in the area of pediatric child abuse. This expert was needed to analyze, understand and explain physical medical findings of the Commander’s daughter discovered during a sexual assault forensic examination that she underwent after reporting her second set of allegations that included rape and oral sodomy by her father. The findings were that the girl’s hymeneal tissue, as observed during a vaginal examination, appeared in manner questionable for, though not quite consistent with, sexual penetration. If the panel or jury was to credit testimony of these findings at trial, the members may conclude they are supportive of the daughter’s rape allegations. The defense sought the child abuse pediatric expert to reassess the actual meaning and limitations of the vaginal physical findings for purposes of placing them in context at trial. This too proved to be invaluable to the defense’s trial victory.
Trial in this case lasted approximately 1.5 weeks. The case began with opening statements. The government focused its remarks on the allegations against the Commander, characterizing him as a sexually hungry predator who preyed on his own family. The defense quickly turned the tides. Attorney Calcagni used opening statement to begin educating the panel on the Commander’s family, which the defense conceded the Commander had destroyed. Married for well over 20 years, the Commander was notorious among his family members for his extra marital affairs. These affairs, which his wife discovered and shared with his children, were the root cause of the couple’s divorce. The Commander and his spouse did their best to work through all of their marital issues to include his the infidelity. They relied on religious faith and even attended counseling. Despite these efforts, the marriage failed. The Commander’s extramarital affairs caused his wife and ultimately his children a lot of pain. This pain was on top of the existing pain, resentment and anger the children already harbored because their father spent a lot of time away from home with the Navy and was physically absent for much of their lives. The defense admitted that the Commander placed his own Navy career goals often times above the needs of his own family. When they were already suffering from his absence, he betrayed them by committing adultery. With this backdrop of the family dynamic, Attorney Calcagni outlined the allegations against his client with a preview of the overall lack of corroborating evidence to support either his daughter’s or wife’s untimely claims of sexual abuse and their collective motives to fabricate. From there, he provided the panel with an introduction and framework of false confessions and the defense theory that the Commander was induced to make a false confession based on NCIS misrepresenting or lying to him that he failed the polygraph examination that he volunteered for. In conclusion, Attorney Calcagni explained to the jury that throughout trial it would hear many stories, but learn of no credible evidence that the Commander engaged in any criminal wrongdoing.
The government presented its case-in-chief after opening statements. It began with calling the Commander’s wife and daughter. Each detailed their allegations. The ex-wife testified about two occasions where the Commander allegedly forced her to participate in unwanted sexual intercourse. She also described another incident whereby she discovered text messages on his cell phone late one night. When she confronted the Commander about the messages, the two got into a verbal argument, which she alleged turned physical when the Commander approached her to physically retrieve the phone. She alleged that he tackled her to the floor causing her and the chair on which she was sitting to topple over and pulled her arms apart to forcefully retrieve the phone from her clutches. On cross-examination, Attorney Calcagni established her bias and anger toward her ex-husband for his infidelity. He then got her to concede that this infidelity was what first destroyed their marriage and ultimately their family, especially the Commander’s relationship with his three (3) children. Attorney Calcagni also confronted the ex-wife on her untimely rape allegations, lack of any corroborating evidence, the fact that she never reported them to anyone before her daughter accused the Commander of sexual assault, and that she had made inconsistent statements to other trusted confidantes about her ex-husband’s behavior to include whether physical injuries she sustained the night of the cellphone struggle were the result of an accidental fall or a deliberate attack by her husband. Attorney Calcagni also got the ex-wife to admit on cross-examination that sexual intercourse, or lack thereof, was always a sensitive topic in their marriage with she and the Commander having different sexual desires and needs. Attorney Calcagni also established that throughout all the years the family lived together, the wife never observed or even suspected any wrongdoing by the Commander with respect to any of their children, especially the second alleged victim in the case. She also testified that with respect to this complaining daughter, she never observed any behavior out of the ordinary with she and her father. The daughter also never made any complaints or disclosures to mom. The mother also conceded various motives to fabricate by the daughter such as her anger toward the Commander for not being around, his destroying the family through his infidelity, his unacceptance of her homosexuality, him revealing her sexuality school authorities to prevent her from going on an overnight school field trip with her romantic partner, and lastly, him discovering and reading her diary while she was hospitalized after her second suicide attempt. Lastly, Attorney Calcagni got the mother to agree that despite her allegations of rape and assault against her husband, she continued to cohabitate and engage in intimacy with him for years after these alleged incidents, and that when she filed for divorce, she elected grounds of irreconcilable differences opposed to abuse.
The government called the daughter as its second witness. She detailed her two sets of allegations against the Commander, one set from when she was a young child while the family resided in Japan, and the second set from when she was a teenager living with her father and his new wife after she ran away from home while living with her mother. Attorney Calcagni attacked the daughter on the untimeliness and inconsistency of her allegations. This included the years in delay between the alleged occurrences and when they were reported. He also focused on the inconsistent statements she previously made under oath about the allegations to NCIS. Attorney Calcagni also questioned the daughter on the many topics that undercut her reliability such as alcohol and drug abuse, mental health issues, prescription medications, history of counseling, lack of reporting to police, failure to mention any wrongdoing by dad in her dairies, failure to reveal anything to her trusted therapists and repeated denial of sexual abuse to various doctors and hospitals following her multiple suicide attempts. She also disclosed anger and near hatred for her father by him invading her privacy through the reading of her diary, nearly destroying her romantic relationship with a high school classmate by exposing the secret relationship to school officials, cheating on her mother, remarrying so quickly, and refusing to condone, accept or approve of her homosexuality. Needless to say, after both complaining witnesses testified, their credibility was completely destroyed by withering cross-examination.
Following the government’s star witnesses (mom and daughter), it then called the NCIS lead agent in charge of the overall investigation; the NCIS a polygraph examiner who obtained the Commander’s alleged confession; and two doctors: one mental health provider and one medical doctor. The lead NCIS agent briefly outlined the investigation in this case from receipt of the complaints to acquisition of the accused’s so-called confession. He also described his personal interview of the Commander whereby he denied knowledge, memory or participation in any wrongdoing. During cross examination on this point, the agent confirmed the Commander’s full cooperation and participation in the investigation and how he even volunteered to take a polygraph examination to clear his own name. On cross-examination, the agent also admitted that the daughter’s prior statements, though under oath, were inconsistent with each other. He also conceded that the wife did not come forward until after the daughter’s allegations. Attorney Calcagni also brought out two additional yet important facts that the government appeared to either gloss over or not attribute any importance. First, during the investigation, the government used the ex-wife to conduct a secretly recorded phone call with the Commander in an effort to gain his admission to sexually abusing their daughter. Not only did this plan backfire, but it also yielded exculpatory evidence that the defense elicited at trial. During the call, the Commander denied any wrongdoing with respect to his daughter close to 100 times. He was in complete shock, disbelief and state of confusion by her allegations, as relayed by his ex-wife. He repeatedly denied any wrongdoing and even volunteered for her to take a polygraph examination to prove his own innocence. With the wife’s persistence, he finally agreed that he would outwardly admit to sexually abusing his daughter, even though he maintained his own innocence, if doing so would somehow aid in his daughter’s mental health recovery. At the time of the call, the daughter had already been in counseling for several years, was taking a number of prescription medications and had attempted suicide twice followed by hospitalizations and out-patient care.
The government then presented its the NCIS agent who was the polygraph examiner that interrogated the Commander to obtain his confession. This witness testified for approximately one hour in a cool, calm and cooperative manner in response to questions from prosecutors. He described a relaxed friendly encounter with the Commander whereby the accused participated in a polygraph examination at his own request, was advised that he failed the test and thereafter, reversed his position by providing a full confession. The cross and direct examinations of this witness were like night and day. Cross-examination lasted nearly seven hours. Attorney Calcagni wrestled every word from the mouth of this trained witness in order to teach the panel members what the government had kept shrouded in secrecy for decades: the truth about interrogations, the use of polygraph examinations in the context of interrogations, post-polygraph interrogations, agents’ training and ability to lie to subjects whom they are interrogating and how none of this process is recorded or witnessed by others. Attorney Calcagni exposed this suspicious process arguably for the first time ever in a court-martial. He also confronted the polygraph examiner with the defense’s independent analysis of the Commander’s polygraph case_results, which revealed that he passed the test. This independent interpretation was in contradiction with the NCIS polygraph examiner’s assessment that the test case_results were consistent with deception as communicated by him to the Commander. Attorney Calcagni further educated the panel members on interrogation tactics and techniques, how such have the ability and power to yield false confessions, the known existence of false confessions and the training NCIS interrogators receive about the dangers of false confessions and how to avoid eliciting them. In the end, Attorney Calcagni finally got the interrogator to admit after hours of surgical questioning (and perhaps without the interrogator’s awareness) that he employed psychologically coercive interrogation tactics against the Commander, which he was taught against using because of their danger to produce false confessions.
The government’s medical experts, like its NCIS agents, did not hold up so strongly on the witness stand. The psychologist who the government first called as an expert opined that the daughter’s behavior; mental health history; and suicide attempts were all consistent with her being a victim of sexual assault. However, on cross-examination, the expert admitted to having only been retained in the case a few weeks before trial and did not ever meet with the alleged victim-daughter. She also did not review all of the medical records or medical history. In terms of the daughter’s actual allegations, the expert struggled to explain the daughter’s memory: on one hand, the ability to remember alleged acts from when she was an infant and on the other hand, the inability until recently to remember repeated forced oral sodomy and rape by her father as recent as one year prior at the rate of 2-3 times per week. As for the medical doctor, the government called the physician who examined the daughter for purposes of sexual assault forensic examination. While she testified to the presence of “some” physical findings that “raised questions about the possibility of repeated intercourse,” she could not opine with any degree of medical certainty that the findings were consistent with intercourse or intercourse-based trauma. She also conceded on cross-examination that the physical findings and/or observations could have equally been accounted for by the daughter’s natural anatomy or consensual intercourse opposed to forced sexual trauma. The bottom line was that she simply did not know one way or another. Following her testimony, the government rested.
The defense presented its own affirmative evidence in the case. This evidence came in three forms. The first was a number of character witnesses all of whom testified to the Commander’s character and reputation for being a peaceful, non-aggressive and non-confrontational person. This was designed to convince the panel members that it was far beyond the Commander’s true nature and character to commit the charged acts of sexual assault. Though he had his flaws, the witnesses all regarded the Commander as a religious man of God who loved and cared for his children deeply, despite his lapses in judgment while married. They all stated that it was inconceivable to them that the Commander would have engaged in any alleged wrongdoing.
The second form of evidence was the Commander’s own testimony. He took the stand, apologized and admitted his infidelity, which caused much pain and hardship to is family, especially the children. He also detailed the interrogation process to which he was subjected and explained why he chose to confess to committing crimes that never occurred. He explained his trust and love for the Navy, which motivated his complete cooperation with the investigation. Overall, he denied any and all allegations against him. After four hours of direct testimony prompted by questioning from Attorney Calcagni, the Commander withstood nearly one and one-half hours of cross-examination. He completely maintained his composure and credibility.
The third part of the defense evidence came in the form of its experts. First, the defense presented its expert on pseudo memories who opined that the daughter’s allegations, if not contrived, were the product of a therapy-induced environment whereby she was both surrounded by other adolescents claiming to be the victims of sexual assault and encouraged by her therapists that she too was a victim. This expert also shot down any proposition by the government or daughter that she repressed memories of the abuse until recently, thereby completely discrediting any notion of repression. Second, the defense called its pediatric child abuse expert, a former Navy Captain, who taught the panel members about the proper administration of a sexual assault forensic examination and how the civilian doctor who conducted treated the daughter failed to perform an optimal exam. With this testimony, the defense rested.
In rebuttal, the government called the Commander’s two other children against him: his oldest daughter and only son (his oldest child). Each testified in their opinions that their father was an untruthful person. The government called them to rebut his testimony at trial and to attack his credibility. On cross-examination, the children could not point to any specific instance other than their father’s cheating and infidelity to support their beliefs that he is untruthful. The children also expressed their anger toward the Commander for his absence for much of their lives, and his demands on them to perform well academically and scholastically during those periods of time when he was home. Basically, the Commander was out to sea a lot and separated from the family. When he was home and in port, he enforced rules and held the kids to standards, which they admittedly resented. On a scale of 1-10, the kids described their anger and hatred towards the Commander at levels of 10 or more. This completely undercut their credibility.
The trial ended with closing statements. The government again focused its argument on the Commander’s confession to sexually assaulting his daughter. The government emphasized that the Commander’s statement was knowing and voluntary. It also argued that the daughter and e-wife had testified truthfully under oath as to the Commander’s actions. Overall, the government’s arguments were unpersuasive. The Defense refocused the panel on the notion of false confessions and how the Commander’s statement as in fact a false confession. Attorney Calcagni made this argument in the context of the interrogation framework, which he taught the panel during cross-examination of the NCIS interrogator, and then argued how the Commander’s interrogation contained multiple factors consistent with his statement being false. He attacked the overall secrecy of the polygraph and interrogation processes. He alluded to the particular interrogator’s experience in this case and that he psychologically broke the Commander causing him to confess. Attorney Calcagni also made various common sense arguments, such as the Commander’s complete cooperation with NCIS at all times during the investigation and even volunteering to take the polygraph, all actions he argued were inconsistent with guilt. He conversely argued that had the Commander been factually responsible for the alleged abuse, he would have retained counsel immediately opposed to voluntarily meeting with NCIS twice and even asking to take a lie detector examination. He also maintained his innocence in the secretly recorded call with his spouse of which he had no knowledge or suspicion was being monitored. Attorney Calcagni in argument also attacked the credibility and unreliability of both his daughter and ex-wife. He emphasized the multiple motives to fabricate and biases against the Commander. He also recounted the inconsistencies, incredibility and implausibility of their allegations. In conclusion, Attorney Calcagni argued that the Commander clearly made mistakes in his life that resulted in the destruction of his family. However, none of those mistakes amounted to rape, sexual assault, indecent acts or any of the other allegations against him. After several hours of deliberations, the panel returned a verdict acquitting the Commander of these heinous crimes.