Jurors hear Owens' call to Mid

Taped apology played after judge refuses to dismiss rape charge

defense begins case

July 15, 2006|By BRADLEY OLSON | BRADLEY OLSON,SUN REPORTER

WASHINGTON -- A military judge stopped just short of throwing out a rape charge against former Navy quarterback Lamar S. Owens, Jr., hinting that had the decision been up to him, he would have acquitted the Naval Academy midshipman.

Outside the presence of the jury -- which is how challenges to evidence or objections are argued in military court -- Cmdr. John Maksym said Owens' civilian attorney "eviscerated the alleged victim during cross-examination" in a manner that was "difficult to endure."

"A reasonable jury could find substantial reasonable doubt as to Owens' guilt as to the [rape] charge, based on the credibility, or absence of credibility, of the alleged victim," he said, referring to the 20-year-old female midshipman who has accused Owens. But the judge denied a motion to dismiss the charges, saying the jury would decide.

That ruling followed another blow to the defense, when the judge allowed prosecutors to play a tape-recording of a phone conversation in which Owens tearfully apologized to the woman he is accused of raping and made potentially incriminating statements to her.

Defense lawyers had tried to suppress the tape, which was recorded Feb. 8 by a Naval Criminal Investigative Service agent, by claiming that the alleged victim was acting as an investigator in the case and thus illegally interviewed Owens before he had been read his rights.

Maksym, who has shown a colorful streak throughout the five days of the trial, denied the motion after sharply criticizing a Naval Academy victim advocate for acting as a "cheerleader" for the accuser during the investigation.

Several jurors questioned Michele Robinson, the NCIS agent who helped the accuser record the conversation, about the early hours of Jan. 29, the time immediately after the woman said Owens raped her.

The panel -- made up of five Naval Academy officers, four men and a woman -- asked why Robinson did not ask the accuser about or seek to retrieve proof of any computer "instant messages" between Owens and the woman.

The alleged victim has acknowledged being drunk and blacking out on the night of the alleged rape, and defense attorneys alleged that she sent an instant message to Owens inviting him to her room, which she has denied.

Robinson said she sent the computers of Owens and the alleged victim to a Defense Department computer lab, and no such messages were retrieved. Defense attorneys have alleged that the accuser shut off the instant message program to delete them.

Owens, a 22-year-old senior who was not allowed to graduate in May, is charged with rape, conduct unbecoming an officer and violating a military protective order not to go near the woman. He maintains he is innocent.

The accuser testified Tuesday that she barely knew Owens, didn't invite him to her room and resisted repeatedly while he raped her. She said she moved away from him but didn't say "no" or alert her sleeping roommate. Witnesses have said she was emotionally distraught immediately afterward.

The Sun is not identifying the woman because she is an alleged victim of sexual assault.

Owens apologized several times on the tape, which was played in preliminary hearings in March, and said he wanted to kill himself when he woke up that morning.

Pausing often during the conversation and audibly crying, Owens told her: "I didn't do it long. ... You weren't even awake, and I stopped."

He never said "rape" and didn't answer when the woman asked: "Why don't you call my dad and tell him that you raped his daughter."

"I know I can't take it back, but if I could ... I would change everything. That's nothing I would ever do," he said, adding: "I could never expect you to forgive me."

Owens showed no emotion when the tape was played.

After playing the tape, Navy prosecutors rested their case.

The defense began its case by calling Michael Smith, a forensic toxicologist for the Armed Forces Institute of Pathology, who explained how alcohol can affect memory and behavior. He said the accuser likely had a blood-alcohol level of 0.2 percent at the time of the alleged rape. That's more than twice the legal limit for drunken driving, 0.08 percent.

Navy football head coach Paul Johnson testified on Owens' behalf as a character witness. The judge limited Johnson to general statements, and the coach said Owens was "an outstanding leader" and had always acted "above reproach."

bradley.olson@baltsun.com

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