Posted on 08/25/2015 5:33:25 PM PDT by markomalley
A Navy enlisted man whose rape conviction was reversed six weeks ago remains imprisoned in South Carolina, caught amid the military’s accelerating campaign against sexual assault.
Now, in an unusual move, attorneys for Airman Dustin M. Clark are urging the same military appeals court that threw out his 2014 conviction to order his immediate release. The 23-year-old Missouri native has already done too much time for a crime he didn’t commit, his attorneys say.
“It’s outrageous,” David P. Sheldon, one of Clark’s attorneys, said in an interview. “They’re making sure he stays in jail.”
It’s rare for a military appeals court to reverse a conviction because of “factual insufficiency,” as the U.S. Navy-Marine Corps Court of Criminal Appeals did with Clark’s conviction July 14. This means the appellate judges thought prosecutors failed to prove their case.
The government, though, apparently wants to keep Clark incarcerated at the Naval Consolidated Brig Charleston in South Carolina pending further review, a process that Sheldon estimates could last as long as 10 months.
The Clark case, in turn, is not unfolding in a vacuum. Instead, it’s occurring as the Pentagon reinforces efforts to combat what political and military leaders alike have repeatedly characterized as an “epidemic of sexual assault.”
“I think it contributed to the verdict,” Sheldon said of the current command atmosphere.
The Navy said in a statement that it has 60 days starting from an Aug. 18 court decision to decide whether to appeal, and it has until Sept. 3 to respond to defense requests that Clark be freed. The Navy declined to respond to defense criticisms.
In Fiscal Year 2014, the military reported receiving 6,131 allegations of sexual assault, an 11 percent increase from the year before. Alarmed lawmakers have been pressuring the Pentagon, imposing myriad new reporting requirements and passing what the Defense Department calls “the most sweeping reform to the Uniform Code of Military Justice since 1968.”
With Clark, the Navy has shown no sign of giving up.
The case revolves around the disputed events of March 24, 2012. A woman said Clark assaulted her after a night of heavy drinking. She reported the alleged rape to law enforcement three months later.
“She … testified that while ‘making out’ with (Clark) on the couch earlier that night, she told him she was not interested in having sex with him,” judges later recounted.
The woman further testified that “throughout the evening she engaged in consensual amorous activity with three different men” before ultimately blacking out, judges noted.
A Navy commander found Clark guilty on Feb. 21, 2014, of rape and forcible sodomy, in a court martial held at the Washington, D.C. Navy Yard. The judge sentenced Clark to seven years in prison and a dishonorable discharge.
A three-judge panel of the U.S. Navy-Marine Corps Court of Criminal Appeals unanimously reversed Clark’s conviction, noting the lack of DNA evidence and the “disorganized” and partial memories belatedly recounted by the alleged victim.
The government asked for en banc reconsideration by all of the court’s judges. That kept Clark locked up.
After the judges quickly denied the request, a government attorney advised he would recommend that officials ask for review by the U.S. Court of Appeals for the Armed Forces, the nation’s highest military court. This, too, would keep Clark in the brig pending resolution.
The government typically only asks the high military court to review a lower court’s decision about 10 times a year. The court is limited to matters of law, and does not delve into the facts of an alleged crime.
“His current confinement is illegal,” wrote Marine Corps Maj. Brian Magee, one of Clark’s defense attorneys, adding that “every day the government holds him in confinement … brings Airman Clark, his wife, his parents and the rest of his family additional and needless suffering.”
This week, responding to the defense attorneys’ petition for a writ of habeas corpus, the lower-level Navy and Marine Corps court gave the government until Sept. 3 to provide reasons why Clark should not be released.
“She … testified that while ‘making out’ with (Clark) on the couch earlier that night, she told him she was not interested in having sex with him,” judges later recounted.
She reported the alleged rape to law enforcement three months later.
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I wouldn’t blame the sailor if he said
this country isn’t worth defending.
The country is worth defending. As for the Community-Organizer-in-Chief, I'm always amazed that anyone in the Secret Service stays with a job in which they are expected to take a bullet for one of the most evil men in history. The communist druggie is not worth defending.
The feminazis are not in the armed forces to defend this country. They’re there to dominate, emasculate, and oppress the straight male. Make no mistake.
Sounds like the making of another lawsuit.
The country is worth defending. As for the Community-Organizer-in-Chief, I’m always amazed that anyone in the Secret Service stays with a job in which they are expected to take a bullet for one of the most evil men in history. The communist druggie is not worth defending.
PIV is always rape, ok?
http://www.freerepublic.com/focus/f-bloggers/3108209/posts
I am glad I retired.
When do Navy enlisted get called “airman”?
Depends upon the rate:
Surprised all of those designations have not been changed to “person”.
If the sodomy law is still in the UCMJ, then every act of homo sex is prosecutable.
I can’t remember, but when I was in the service, I believe they told me that even if you aren’t convicted, that if you are in the brig, it shows up as a Federal Prison Stint.
Is that true? Like even though you aren’t convicted you still have a Federal Prison record.
The suffix “man” as in “airman” means “person”.
Yet he was convicted, and that conviction will probably ruin his life. Who wants to hire a convicted rapist? Who wants to live near a convicted rapist? Who wants to marry a convicted rapist? Who cares if he is eventually released on some "legal technicality"?
Absolutely nothing will happen to her. Zero consequences.
Whatever facts are revealed, he will remain the rapist, and she will remain the victim.
Makes you want to encourage young men to enlist in the Navy, doesn't it?
I know defense lawyers are bound by oath and jurisprudence to defend a person even when you know they're guilty .... but ....
“.......the lower-level Navy and Marine Corps court gave the government until Sept. 3 to provide reasons why Clark should not be released.”
Like beating ones head into a wall. When one is in the military, no matter the branch of the military one is considered an asset, not a person. This young man is an asset assigned to a jail cell until a decision is made of where to utilize the asset next.
The military doesn’t care the asset is a human. Could be a sink in the Admiral’s mess for all they care. They’ll move the asset to some duty down the road, but for now they know where the asset is, and that it won’t be making any problems for them where it’s at.
No, unless things have change in 45 years, which is entirely possible. My last year in I worked in a unit that processed soldiers awaitng trial, discharge or reassignment. There is no official reassignment unless orders a have been cut.
LOL!
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