Judge rejects Mids' suit

February 24, 1994|By Tom Bowman | Tom Bowman,Sun Staff Writer

The Navy was to begin this morning its first disciplinary hearings against 109 senior midshipmen in the U.S. Naval Academy's largest cheating scandal, after a federal judge threw out a suit claiming the investigation violated the midshipmen's constitutional rights.

U.S. District Judge Stanley S. Harris refused yesterday to block the hearings by a panel of five officers, ruling that because the hearings have yet to be held, it is too early to say whether any rights have been violated.

Judge Harris also disagreed with the midshipmen's contention that the Navy violated the law by replacing the midshipman-run honor boards with the panel of active-duty officers to determine punishment, which could include expulsion.

"We appreciate the court's ruling. We are committed to a full and fair resolution of the cases," said Lt. Cate Mueller, a Navy spokeswoman.

The Navy is expected to hold five hearings a day, six days a week, until they are completed, she said. The hearings, originally scheduled to begin Feb. 11, have been postponed three times because of the suit.

"We've read the judge's order. We're considering our next step," said Charles W. Gittins, the midshipmen's lawyer, who called the panel a "jerry-built procedure" designed to "railroad" the midshipmen from the academy.

He said he could appeal the ruling or refile the suit after the officers' panel hearings are completed. He likely will meet with his clients this weekend to decide what to do, he said.

Forty-eight of the 133 midshipmen implicated in the scandal joined in the suit, including Jason Berger, class president, and football co-captains Jason Van Matre and Javier Zuluaga.

Those co-captains and more than 20 other midshipmen attended the federal court hearing Tuesday. They would not comment on the scandal or their legal fight.

Although 133 were implicated in cheating on an electrical engineering exam taken by 663 midshipmen Dec. 14, 1992, the cases of 109 are serious enough to warrant action by the officers' panel, headed by Rear Adm. Richard C. Allen.

In nearly all the remaining cases, the midshipmen received punishment less severe than expulsion from Capt. John B. Padgett, the commandant of midshipmen.

The midshipmen claimed in the suit that their rights were violated during the eight-month probe because Navy investigators did not read them their rights against self-incrimination and the midshipmen did not have the right to an attorney.

"The government compelled from them statements they plan to use at their hearings," Mr. Gittins argued during the court hearing Tuesday. "The midshipmen were threatened with court martial" if they didn't answer investigators' questions, he said.

But Assistant U.S. Attorney John D. Bates argued that the Allen hearings are "administrative" and that the Fifth Amendment protections against self-incrimination apply only to criminal proceedings.

Judge Harris agreed, ruling that no criminal hearings are pending or contemplated.

The midshipmen will not endure any "substantial hardship" from taking part in the hearings, the judge added, because it cannot be determined whether the board will recommend expulsion.

Midshipman who leave or are expelled in their senior year must serve three years in the Navy as enlisted sailors or pay back the government nearly $80,000 for their education.

The judge also rejected the midshipmen's argument that honor boards run by their peers and academy officials should decide the fate of those charged with violating the strict honor code, which states a midshipmen will not "lie, cheat or steal," rather than the Allen panel.

He agreed with government attorneys who said Adm. Frank B. Kelso II, the chief of naval operations, had the authority -- as the Navy's top officer -- to create a new procedure.

Top Navy officials decided that the academy should not be involved in deciding the cases, after the Navy inspector general's report on the cheating scandal found that many midshipmen did not think the honor process was fair or impartial.

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