Tag Archives: Court of Appeals for the Armed Forces

Another Soldier Tries to Clear His Name Following Conviction

Three years ago this month, I was contacted for the first time by Teresa McQueen, a woman whose son, Todd Knight — then a 25-year-old Army Sergeant stationed in Germany — had been accused of raping a 19-year-old woman. Today, I offer a long-overdue update about that case and issue a call to action.

This photo shows Todd Knight in his Army uniform prior to being accused of rape and convicted on a lesser charge.

This photo shows Todd Knight in his Army uniform prior to being accused of rape and convicted on a lesser charge.

First, a review of some case details is in order.

On March 7, 2013, I published an article that included snippets about several cases involving military men accused of sex crimes. Below is the text of the portion of the aforementioned article that pertained to Knight’s case:

While stationed in Germany, Army Sergeant Todd Knight befriended a young German woman while out with friends the night of Jan. 27, 2012. At some point during the evening, he and three other Soldiers — one of whom he considered a friend — accompanied the woman and one of her friends to the home where the sister of one of the women — but not the accuser — lived.

What actually happened at the home, however, remains a matter of much debate as conflicting stories were given to German authorities. Two things, however, stand without dispute: Sergeant Knight was arrested by German authorities the next day, accused of rape, and those same German authorities eventually decided not to pursue the case.

U.S. military officials, on the other hand, decided to move forward with charges of their own despite the fact that the alleged victim testified during the Article 32 hearing that she couldn’t remember what had happened that night and despite the aforementioned conflicting statements.

On Dec. 18, 2012, Sergeant Knight was found guilty of sexual assault, sentenced to one year behind bars and busted to E-1, the lowest enlisted rank and a rank he would hold until the end of his sentence when he would be dishonorably discharged from the Army.

Three months after Sergeant Knight’s conviction, people continued to show interest in proving the 25-year-old Soldier’s innocence. One who showed interest was the German woman at whose home the alleged rape occurred.

In a “To Whom It May Concern” letter dated February 28, 2013, she wrote that she had known Sergeant Knight for more than two years, and then she dropped a bombshell, explaining that the sergeant’s unemployed accuser “told me SGT Knight did not rape her, and that she only said that because she didn’t want her boyfriend at that time to find out she was cheating on him.”

Unfortunately, communications with Knight’s family ended a few months after the trial — they were, to say the least, distraught — and resulted in me not receiving copies of several documents, including the Record of Trial. Things changed, however, a few days ago, after I came across Knight’s case among my military justice files and decided to contact his mother again.

In response, she sent me an electronic copy of the ROT as well as several documents related to his appeal.

In the ROT, I learned several Soldiers selected to serve on the court-martial panel (i.e., the military equivalent of a jury) were in the rating chain of either the convening authority (i.e., the senior officer ordering a court-martial be held) or another panel member. Any chance of undue command influence as a result? Damn right!

I learned Sgt. 1st Class Gary G. Emmert told the court he had completed the 80 hours of Army Sexual Harassment/Assault Response and Prevention (SHARP) training necessary to serve as a sexual assault victim advocate and was, in fact, serving as the victim advocate for his unit at the time he was tasked to serve as a panel member.

I learned LTC  John D. Koch told the court he had served on “multiple court-martials before” and, while that’s not unusual for a line officer of his rank, something else he said caught my attention. When asked if he had ever served on a panel adjudicating a sexual assault case, he answered, “Yes.” Asked how many times he had served on such a panel, he answered, “I believe twice. I’ve lost count of how many were there.”

Colonel Koch also confirmed that he had received “a sexual assault special briefing” for Army leaders while stationed at Vicenza, Italy, earlier the same year. During that special briefing, he and fellow trainees watched a 20-minute clip from “The Invisible War.” the Oscar-nominated documentary in which a handful of cases purported to be representative of the so-called sexual assault “epidemic” in the military are highlighted while solid facts, as highlighted in my recent article about lies, damned lies and statistics, are largely excluded.

Could forcing Soldiers to watch that film be construed as exerting undue command influence via brainwashing? I think so. But I digress.

Because the ROT contains 663 pages, I’ll use a 15-page document — the brief filed April 9, 2014, on Knight’s behalf with the Army Court of Criminal Appeals by Frank Spinner, his Colorado Springs-based civilian defense attorney, and Capt. Brian Sullivan, his military defense attorney — to help explain why the case against Knight was so weak. Below is the text of that document’s “Argument” section with boldface type added for emphasis by yours truly and the names of the accuser and the author of the aforementioned “To Whom It May Concern” letter redacted:

The government failed to prove beyond a reasonable doubt that SGT Knight engaged in an act of sexual intercourse with (accuser) while she was substantially incapacitated and that SGT Knight was not under a mistaken belief that she consented to sexual intercourse. The case is built on (accuser’s) credibility regarding what happened when she was alone with SGT Knight in the apartment bathroom.

The defense portrayed (accuser) as a woman who flirted with SGT Knight through the course of the social evening they experienced with mutual friends, but who turned on him after they consensually engaged in sexual intercourse and she learned he had a girlfriend. She did not back down from her claim, because she saw an opportunity to financially benefit from a victim compensation opportunity.

The government countered by claiming that SGT Knight took advantage of her because of the amount of her alcohol consumption, which left her vulnerable and impaired to the degree that she was unable to consent.

The government presented testimony from German police and Army forensic experts addressing chains of custody and laboratory analysis of evidence. Their testimony, however, was not helpful in determining the central issue of consent. They merely confirmed that a complaint was made and investigated, following normal protocols, even though the investigation was somewhat limited in scope.

SGT Knight did not testify, instead relying on the requirement for the government to prove their case beyond a reasonable doubt.

To the extent that accuser testified, she acknowledged that she had a poor, arguably selective, memory about what happened that night. No witness saw her pass out, nor was there any evidence she consumed any more alcohol than anyone else who socialized with them that evening. The accuser, an experienced drinker, who admitted to getting drunk on prior occasions, confirmed she had no more to drink that night than what is normal for her.

This begs the question: what evidence supports her claim that she was substantially incapacitated? There is no evidence other than that she consumed six drinks over a period of four hours. This amount of alcohol consumption, standing alone, does not prove substantial incapacitation beyond a reasonable doubt. The government did not present any evidence that accuser was drugged, even though she claimed that she may have been drugged.

Then there is the issue of whether the government disproved the mistake of fact affirmative defense beyond a reasonable doubt. When the testimony of the witness is combined with the photographs of SGT Knight and accuser, the evidence clearly supports a mistake of fact defense.

The witness’ testimony deserves closer scrutiny. The witness observed the interaction between accuser and SGT Knight at the critical point where SGT Knight went into the bathroom at her apartment. She also talked to accuser right after the alleged rape. Witness appears to have inferred from what she heard and observed that accuser pulled SGT Knight in the bathroom and rubbed her back and, afterwards, when telling witness that she had sex with SGT Knight, wanted to communicate with him again. It was at this point witness informed accuser that SGT Knight would not respond because he had a girlfriend. Thus, a potential motive for the claim was born.

One possible explanation for the court members’ decision involves the face that accuser vomited a couple of times that night. On the one hand, it could be argued that no one would have sex with another person in that condition. On the other hand, in the context of individuals drinking and flirting with each other, why would this face necessarily keep two people from having sex? There is not way this question can be easily answered. The real problem is whether any adverse inference that flows from this fact against SGT Knight should be drawn beyond a reasonable doubt. There is no empirical basis for drawing such an inference.

In the absence of any objective corroboration of accuser’s claim that she was sexually assaulted, what evidence makes her believable beyond a reasonable doubt? There is none. In fact, a number of considerations raise serious questions about her credibility. Why did she use a translator when she testified? Accuser was born to a U.S. Army soldier, and who was married to a U.S. Army soldier at the time of trial, simply did not need that assistance.

Then there is the question regarding whether accuser may have been drugged. Although she acknowledged that this is what she originally believed, by the time of trial, her belief had changed because there was no evidence to support this belief. At trial, her story became that in pretrial interviews the prosecutors helped her see how drunk she was. This is inconsistent, however, with the amount of alcohol this experienced drinker consumed that night by her own admission.

Finally, was there some financial motive behind her claim? She retained an attorney shortly after she made her initial complaint, for the purpose of seeking victim compensation from the Army.

Just as experts could not look at the physical evidence and determine whether they were caused by assaultive behavior, this Court cannot say beyond a reasonable doubt that accuser told the truth or that SGT Knight did not have a mistaken belief that she consented to sexual intercourse.

Perhaps as damning as the claim by the author of the “To Whom It May Concern” letter that the accuser had told her she had not been raped, is the fact the accuser received a payment from the U.S. Army as compensation for pain and suffering stemming from a rape that did not happen. While I’ve been told she received a payment in the neighborhood of $20,000, I’m attempting to obtain a copy of any official documentation that reveals the exact amount of money she received. I will share that amount in an update as soon as I get it.

Incredibly, the ACCA denied Knight’s appeal in a decision announced Jan. 15, 2015. Now, aside from a presidential pardon, Knight has only one level of appeal remaining — the Court of Appeals for the Armed Forces.

Stay tuned for updates on this case — incredibly similar to the one I chronicled in my first nonfiction book, Three Days In August — and other military justice cases I’m following.

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