Judge limits testimony

Other evidence is in dispute

July 14, 2006|By BRADLEY OLSON | BRADLEY OLSON,SUN REPORTER

WASHINGTON -- The Navy judge supervising the rape court-martial of former Naval Academy quarterback Lamar S. Owens Jr. chided military prosecutors on Thursday for having "weak facts" and "anemic witnesses."

The statements - which were not made in front of the jury - were among several unusual comments Cmdr. John Maksym made on the fourth day of the military trial at the Washington Navy Yard.

On a day that was largely overshadowed by Maksym's refusal to allow one expert witness for the prosecution and his decision to severely limit the testimony of another, a friend of the accuser testified that Owens admitted to the rape. The defense team disputed that testimony.

Brian Heberlig, one of Owens' civilian defense attorneys, pressed the woman's friend on whether Owens ever admitted to rape when he was talking to her and another female midshipman after the Jan. 29 incident.

"We asked him if he believed she wanted it, and he verbally said, `No,'" she said.

The Sun is not identifying the woman or her friends - all midshipmen - because she is alleging she is a victim of sexual assault.

The prosecution has presented all of its evidence in the case except for a conversation Owens had with his accuser that was taped by a Navy investigator as part of the investigation.

That piece of evidence - which includes potentially damning admissions he made to the woman - is apparently in dispute. Charlotte Cluverius, a former academy law instructor, speculated that the defense will argue that the accuser was acting as a government agent in the conversation and that the tape cannot be used because Owens had not been read his rights. Today, each side will argue on a motion the defense filed to keep the tape from becoming evidence.

The trial is one of three sexual misconduct cases being brought this summer by Vice Adm. Rodney P. Rempt, the Naval Academy superintendent. He has taken an aggressive stance against sexual assaults after studies and surveys found a hostile climate toward women at the academy. But defense lawyers say Rempt is responding to political pressure in charging their clients.

Owens is charged with rape, conduct unbecoming an officer and violating a military protective order not to go near his accuser after the incident.

Owens, a 22-year-old senior who was not allowed to graduate in May, says he is innocent. If convicted, he could be sentenced to life in prison, though such a sentence is rare.

Maksym drew early attention when he lectured Rempt for sending e-mails to academy personnel that "insinuate guilt."

Yesterday, after a Navy nurse, Lt. Cmdr. Amy Branstetter of the National Naval Medical Center in Bethesda - who conducted a rape examination on the woman - said she found no evidence of injury, prosecutors attempted to call an expert witness who would testify that many rape examinations produce no evidence of injury.

The judge said the jurors didn't need an expert to tell them that wounds from sexual trauma can heal quickly. Then he said that "the most fascinating creature developed by the Lord God Almighty is the human woman."

Maksym sustained a defense objection to the witness and did not allow the prosecution's expert witness - Navy Lt. Cmdr. Cynthia Ferguson, a nurse, midwife and forensic rape examiner at Bethesda - to testify.

"She's not even a physician," he said.

He added that Ferguson - who had been brought into court to testify before the judge and lawyers but not yet to the jury - showed prejudice because she assumed all the women she examines in rape cases are victims.

He also stopped just short of refusing to allow the prosecution's other expert witness, Capt. Argelio Lopez-Roca, to testify about how sexual assault victims commonly avoid reporting rape. In that instance, he allowed the testimony of Lopez-Roca, a military psychiatrist at Walter Reed Army Medical Center, but limited what prosecutors could ask him.

"We're not talking about the son of Freud here," Maksym said of Lopez-Roca, who began a forensic psychiatry fellowship at Walter Reed two weeks ago. "He simply doesn't have enough time in the pond," noting that prosecutors might have called "some poo-bah" from Johns Hopkins or Harvard universities instead.

The prosecution also presented two witnesses in connection with one of Owens' lesser charges, that of violating an order not to go near his accuser.

Lt. Ryan Frommelt, Owens' former company officer, testified that Owens walked by the accuser's room using a stairwell and a hallway he had been ordered to avoid.

Testimony also focused on tension between the accuser, 20, and her friends and members of the football team.

The accuser's friend, who said Owens confessed to her, admitted under cross-examination that she had had several bad relationships with football team members and had "sworn off" dating them.

But she also said many members of the football team are her friends.

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