Gay Air Force Lt. Joshua Seefried, a prominent advocate for the rights of gays in the military, is tentatively scheduled to go on trial in a court-martial next month on sexual assault charges at Andrews Air Force Base in Maryland.
In a development that until now has gone unreported in the media, Seefried was charged in April with wrongful sexual contact and forcible sodomy. In October, his commanding officer at Fort Meade in Maryland, where he’s currently stationed, added an additional charge of abusive sexual contact.
Statements made by military prosecutors at a pre-trial motions hearing at Andrews on Monday revealed that the three charges stem from an accusation by U.S. Marine Lt. Edgar Luna, who’s gay, that Seefried allegedly performed sexual acts on him in a hotel room in New York City in May 2012 at a time when Luna says he was intoxicated and unable to give consent.
Sources familiar with the case point to a report prepared by a highly regarded investigating officer knowledgeable in military law that questions the credibility of the charges. The officer, Air Force Col. Robert Preston, presided over an Article 32 hearing on the case in September. Article 32 hearings in the military are similar to civilian grand jury proceedings.
At the conclusion of the hearing Preston recommended in his report that the case against Seefried should not proceed to trial by court-martial because there was insufficient evidence to obtain a conviction and that Seefried would most likely be acquitted.
Most of the arguments at the eight-and-a-half hour hearing on Monday centered on a controversial decision in October by Major General Darryl Burke, commander of the Air Force District of Washington, to override Preston’s recommendation and order that Seefried’s case proceed to a full court-martial, which is scheduled to begin on Jan. 26.
Seefried’s defense team was further startled when Seefried’s commanding officer at Fort Meade, Lt. Col. Michael Goodwin, followed Burke’s action by adding the additional charge of abusive sexual contact against Seefried.
At the sometimes contentious hearing on Monday, Seefried’s civilian lawyer, Richard Stevens, fired questions at Burke and Goodwin, whom he called as witnesses, asking whether their respective decisions to bring the case to a court-martial and to add the additional charge were based on fear of outside political repercussions rather than the merits of the case.
He pursued that line of questioning in support of a motion he introduced calling on the judge presiding over the hearing, Col. Ira Perkins, to dismiss the case against Seefried on grounds of unlawful command influence, an action considered a serious breach in the military justice system.
Stevens noted that two Air Force generals’ careers have ended recently over widely publicized reports that they put a stop to the prosecution of separate sexual assault cases under their command at a time when members of Congress and President Obama have criticized the military justice system’s handling of sex crimes.
He asked Burke if he feared that his own career could be in jeopardy for being viewed as being too lenient on a sexual assault case if he accepted Col. Preston’s recommendation to drop the charges against Seefried.
“I base my decisions on the evidence,” Burke said when asked by one of the prosecutors in the case whether his decision on the Seefried case was based on facts or external influences.
The lead prosecutor, Maj. Mark Rosenow, disputed Stevens’ line of questioning, saying the defense failed to provide substantiation that Burke or Goodwin were in any way influenced by political considerations in their decisions to bring the case to a court-martial and add the additional charge.
In response to questions by Stevens, Burke testified that he based his decision to bring Seefried’s case to a court-martial on recommendations by his military law advisers. Goodwin cited a similar recommendation by his advisers from his base’s Judge Advocate General’s office, which serves as the military’s legal arm.
In a separate motion, Stevens called on the judge to reopen the Article 32 hearing for Seefried, among other things, on grounds that the defense was denied the right to cross examine a key witness in the first Article 32 hearing that could have provided the defense with further evidence to challenge the allegations against Seefried by his accuser, Lt. Luna.
Col. Perkins, the presiding judge, said he would deliberate over the Article 32 motion and the motion for dismissal of the case and issue a ruling on the two motions sometime this week.
Seefried and attorney Stevens declined a request by the Washington Blade for comment, saying it would be inappropriate for them to discuss the case at a time when a military judge was deliberating over the two defense motions filed on Monday, according to D.C. gay activist Lane Hudson, a friend of Seefried’s who attended Monday’s hearing and who spoke to Stevens and Seefried during breaks in the hearing.
Friends of Seefried, including Hudson, say Seefried is hopeful that his name will be cleared by a dismissal of the charges or a subsequent acquittal if the case goes to trial in a court-martial.
Among those called by the defense to testify at the hearing on Monday were Luna and U.S. Coast Guard Lt. Commander John Fiorentine, who was also charged with sexually assaulting Luna at the hotel in New York before authorities dismissed the case against him at the recommendation of an Article 32 investigating officer.
Among the questions Stevens asked Luna was whether he had seen the Article 32 report in Seefried’s case, which Stevens said may have been leaked and circulated on a listserv or Facebook page.
Luna said he thought he may have seen an article or a discussion about the Article 32 report on a listserv but said he didn’t see the report.
Stevens told the judge that reading the Article 32 report, which discussed inconsistencies in Luna’s earlier statements accusing Seefried of sexually assaulting him, would give him an opportunity to craft his testimony at a court-martial for Seefried where he could minimize inconsistencies.
Sources familiar with the Seefried case said the sexual assault allegations swirling over his head emerged from a weekend gathering in New York City in May 2012 of seven junior gay military officers from across the country and a straight female friend who participated in Fleet Week, an annual event in which Navy and sometimes Coast Guard ships dock in a major U.S. city, including New York.
The gay officers, who were from all branches of the military, were also celebrating the repeal a few months earlier of the “Don’t Ask, Don’t Tell” law and the behind-the-scenes effort by several of them, including Seefried, to push for the repeal, those familiar with the gay officers said.
Seefried in 2010 founded OutServe, a group of gay and lesbian active duty service members who anonymously lobbied for repeal of “Don’t Ask, Don’t Tell.” Seefried reportedly knew most of the gay officers who gathered in New York, including Luna, through OutServe.
According to sources familiar with the case, the gay officers met at a Manhattan restaurant for brunch on the afternoon of May 26, and all of them, including Luna, consumed several alcoholic beverages. After spending a good part of the afternoon at the restaurant, several of them accepted Seefried’s invitation to join him at the spa in the hotel in which he was staying, which was located about a mile from the restaurant.
All of them, including Luna, walked from the restaurant to the hotel, which took about 20 minutes, sources familiar with the case said. Upon arrival at the hotel several of the people accompanying Seefried to the spa changed into bathing suits or gym shorts and entered a communal hot tub. Several of those in the group reportedly saw Luna and Seefried “making out” in the hot tub in what they believed to be a mutually consenting display of affection.
But the Article 32 report cites a statement taken from Luna after he returned to his military base in Florida in which he said he became “extremely intoxicated” at the restaurant and could not remember anything from the time he was in the restaurant until about midnight, when he said he woke up disoriented and naked in a hotel room with Seefried and Fiorentine, the Coast Guard officer.
The Article 32 report – and discussion by the defense and prosecution at Monday’s hearing at Andrews Air Force Base – mentioned Luna telling investigators that he talked to several people he had been with that night who gave him various accounts of what he had been doing and how he got to the hotel. In at least one statement he reportedly said Seefried told him he saw Luna and Fiorentine engaging in sex in the hotel room.
Sources familiar with the case say Luna initially accused Fiorentine of sexually assaulting him in the hotel room while he was impaired by alcohol. Fiorentine was subsequently charged and brought before his own Article 32 hearing earlier this year in which the investigating officer found that there was insufficient evidence to bring his case to a court-martial, resulting in his case being dropped.
People who know Seefried say that in June 2012, about a month after the alleged sexual assault took place in New York, Luna appeared to be on friendly terms with Seefried, exchanging text messages with him and accepting an invitation by Seefried to join him and others at a White House LGBT Pride month reception, which President Obama attended.
The friends have expressed surprise that Luna shortly after the White House reception chose to implicate Seefried in the sexual assault.
People who know Luna identify him as an openly gay advocate for gays in the military and an early member of OutServe. Luna appeared in a broadcast interview by CNN and was quoted in Huffington Post in September 2011 shortly after Congress’s repeal of “Don’t Ask, Don’t Tell” went into effect.
Hudson said he is troubled over the decision by General Burke to “ignore” the Article 32 investigating officer’s recommendation against proceeding with a court-martial for Seefried.
“Josh Seefried is a leader in the LGBT community and played a key role in the repeal of the discriminatory law known as ‘Don’t Ask, Don’t Tell,” Hudson said.
Hudson said that Seefried ironically would have benefited from a bill stalled in the U.S. Senate that calls for removing military commanders such as General Burke from the decision-making process in sexual assault cases.
The bill, the Military Justice Improvement Act introduced by Sen. Kirsten Gillibrand (D-N.Y.), is aimed at preventing military commanders from blocking sexual assault charges from advancing to a court-martial when the facts in such cases warrant a court-martial, a statement released by Gillibrand says.
But Hudson and others who know about Seefried’s case have said the legislation would also prevent a military commander from unfairly advancing a case to court-martial when the evidence shows that it should not advance to a court-martial.