Soldier's rape conviction reversed; Appearance of unlawful command influence cited

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Soldier's rape conviction reversed; Appearance of unlawful command influence cited

by: Michael Doyle | .
McClatchy Washington Bureau | .
published: August 27, 2015

WASHINGTON (Tribune News Service) — A Joint Base Lewis-McChord soldier was inspired by the military’s ramped-up campaign against sexual assault when she reported in 2012 she had been raped several years before.

The soldier’s belated testimony helped convict Army Staff Sgt. Gabriel C. Garcia. But now, an appeals court has dismissed Garcia’s rape conviction, citing evidence problems as well as a politically infused command climate that deems military sexual assault an epidemic.

“The proceedings were unfair,” the U.S. Army Court of Criminal Appeals said in its unanimous Aug. 18 ruling.

In particular, the two men and one woman on the panel noted how the Army prosecutor summoned sentiments that have swept through Congress and the Pentagon in recent years. The ruling makes clear that all military lawyers must now tread carefully as they balance zeal with justice.

“With multiple references, some overt and others thinly veiled, to the Army’s efforts to confront sexual assault, the government attempted to impermissibly influence the (court martial) panel’s findings by injecting command policy into the trial,” Col. R. Tideland Penman, Jr. wrote for the court.

Currently held at Naval Consolidated Brig Charleston in South Carolina, the 47-year-old Garcia remains convicted on charges involving “maltreatment” of two enlisted females. One said Garcia called her sexually suggestive names in an email. Another said Garcia called her “sexy” and “cutie” and discussed his sex life.

Garcia’s defense attorney says these other charges were imposed to paint Garcia in a bad light, the kind of predator the military is now committed to rooting out.

“This is a case where the pressures on the prosecutors caused them to go way beyond what is proper,” Garcia’s defense attorney Phil Cave said Wednesday. “They knew they weren’t supposed to introduce politics into the case, but they did.”

And, Cave added, “It was a weak case on the facts.”

An Army reaction could not be obtained Wednesday afternoon.

Allegations of unlawful command influence have dogged military courts ever since the anti-sexual assault campaign gained the momentum that led President Barack Obama in May 2013 to declare that those who “engage in this stuff” in the military should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

“We’re going to communicate this again to folks up and down the chain in areas of authority, and I expect consequences,” Obama added.

Defense lawyers in military sexual assault cases now routinely raise the unlawful command influence issue. Some convictions have been reversed and others upheld, while trial judges have given defense attorneys extra leeway.

A former resident of San Antonio, Texas, Garcia was serving with the 66th Military Intelligence Brigade in Germany when he first met the 23-year-old woman who later accused him.

The soldier, a paralegal specialist, testified Garcia raped and sodomized her. Several weeks after the alleged assault, she accompanied him to dinner and later sent him several sexually provocative photos of herself, according to trial testimony.

Several years later, at Joint Base Lewis-McChord in Washington state, the female soldier reported she had been assaulted. At the time, she testified, she was keenly aware that “there were so many messages coming at me” about the prevalence of military sexual assault, from Army radio announcements to a movie called “The Invisible War.”

“There are certain points in your life where you start hearing things and you kind of get that feeling, like, I feel like somebody is talking to me,” the solder testified, court records show.

The alleged victim further testified that she was older and “more seasoned” as a soldier, and was finally “secure in being able to say this is what happened.”

Cave, the defense attorney, said he will file a habeas corpus petition seeking Garcia’s release if the Army doesn’t take action on its own by the end of this week.

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