The case is drawing heightened attention as Congress, the White House and the Pentagon are focusing on stamping out sexual assault in the military and a rise in reported assaults. Meanwhile, lawmakers are considering legislation that would remove commanders, including superintendents at the nation's military academies, from the process of deciding whether serious crimes like sexual misconduct cases go to trial.
The alleged victim in the Naval Academy case has said she was drinking and does not remember having sex with the men at the April 2012 party but heard about it later from others. Proving that the woman was incapacitated and unable to consent to sex is key to proving the government's case. Defense attorneys have said there is no evidence the woman was forced to have sex.
"As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim's) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government's task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim's) credibility at the Article 32 hearing," Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.
Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.
"There is no effort to get a win here none," Burke said.
Burke said she was not provided a copy of the investigating officer's report, despite requesting it. She also said she has concerns about how investigators handled the case.
The Article 32 hearing was held in late August and early September to help determine whether the men would face a court-martial. Tate, of Nashville, Tenn., is charged with aggravated sexual assault. Graham, of Eight Mile, Ala., is charged with abusive sexual contact.
A Naval Academy spokesman has said previously that the decision to move forward with a court-martial is based on whether the superintendent finds evidence of a crime, not on the likelihood of a guilty verdict. A spokesman for the academy, Cmdr. John Schofield, declined to comment on the report Wednesday because it was part of ongoing courts-martial.
Still, prosecutors in the case will need to be able to explain inconsistencies in the woman's testimony to get a conviction, said Philip Cave, a retired Navy judge advocate who is now a private defense attorney in military law.
"It is an overall credibility issue, some of which the prosecutor probably could take the sting out of if they're good enough," Cave said. "Others, they may not be able to," he added, referring to the number of inconsistencies highlighted in the report.
Ronald Herrington, an attorney for Graham, said he believes the investigative officer's report shows that political pressure surrounding the problem of sexual assault in the military has driven the case forward when it should have been dismissed.
"That IO report was a pretty extensive effort to get to the truth the most exhaustive effort that I've ever seen in that regard and at the end of the day it was clear that the case should be dismissed," Herrington said.
Jason Ehrenberg, an attorney for Tate, also criticized the influence of the current political climate on the case moving forward.
"I know why," Ehrenberg said, when asked why he thought the case was moving forward. "And that's because of the politically charged environment that we're in."
Monahan listed 35 examples in testimony that he found eroded the woman's credibility. At the top of the list, she initially denied under cross-examination that she pleaded with Tate to either not go to Navy investigators or to lie to them. She later qualified her testimony, saying she was "pretty sure" she did not ask Tate to lie. However, at the court hearing, defense attorneys played a recording of a phone call in which she told Tate, "I hate to ask you to lie, but I don't want this to go anywhere."
Furthermore, Monahan found that the government would have difficulty proving beyond a reasonable doubt that the woman could not consent to sex with any of the men. For example, no one reported seeing the woman passed out the night of the party, Monahan wrote.
In Graham's case, Monahan found it highly probable that a military judge would not allow prosecutors to present his admission to investigators that he had oral sex with the woman in a car outside the party because Naval Criminal Investigative Service agents did not read the midshipman his rights before he made the statement.
A court-martial for Graham is scheduled to begin Jan. 27. A court-martial for Tate is scheduled to start Feb. 10.