An Air Force judge on Thursday will weigh testimony on whether prosecutors wrongly withheld evidence that could have aided the defense of an Air Force Academy cadet convicted of sexual assault.
Lawyers for former cadet Stephan H. Claxton argue that his 2012 conviction is void because prosecutors failed to disclose that the government's star witness in the case, former cadet Eric Thomas, was a confidential informant for military investigators. An appellate court ordered the academy hearing to gather evidence that will be used to determine Claxton's fate.
During the 2012 court-martial, witnesses including Thomas described how a drunken Claxton locked himself in a room with an inebriated woman. Cadets, including Thomas, pushed their way in, fighting with Claxton on the way.
"The cadets found (the victim) with her jeans unbuttoned and her shirt pulled up to chest level. She was unresponsive and was removed from the campus by ambulance," court papers say.
Claxton got a six-month sentence for wrongful sexual contact and assault and was kicked out of the academy.
The status of Thomas has been under scrutiny since a 2013 Gazette investigation found that the informant was later abandoned by authorities during proceedings to remove him from the school.
The academy has contended that Thomas was not an informant during the 2011 academy dorm room incident involving Claxton. Thomas, who was later kicked out of the academy for misconduct relating to the Claxton case, has argued that he was under secret orders from the Air Force Office of Special Investigations to tail Claxton to catch him in the act of sexual assault.
The Court of Appeals for the Armed Forces ordered the academy hearing after Claxton lawyers argued in 2014 that the failure of the government to disclose Thomas' informant work poisoned the case against their client.
A judge at the academy will rule whether such a disclosure could have injected doubt of Claxton's guilt. To rule in favor of the academy, the judge must find that government's failure to disclose Thomas as an informant was "harmless beyond a reasonable doubt."
The hearing will delve into Thomas' role at the academy, which has been the subject of an Air Force Inspector General's query and is being examined by Pentagon investigators.
One issue is whether Thomas was an informant in 2011 when the Claxton incident occurred.
The Air Force has contended that while Thomas later became an informant, he was just a witness in the Claxton case. Officials later used Thomas' conduct during the Claxton incident against the former cadet, including leaving the campus with Claxton and having a girl in his room - the girl Claxton was convicted of assaulting.
While Thomas claims his OSI handlers ordered him to tail Claxton, the academy piled on demerits for those regulatory violations that were used as grounds for his dismissal before his planned graduation in 2013.
Thomas' attorney, Skip Morgan of Colorado Springs, said the hearing will show that by trying to help authorities convict Claxton, Thomas wound up in trouble.
"If Eric keeps his mouth shut about Claxton, he graduates from the academy and is a lieutenant now," Morgan said.
Another key witness at Thursday's hearing is expected to be former OSI agent Brandon Enos, who used Thomas as an informant.
OSI runs the confidential informant program across the Air Force and testimony from Enos could be key in determining who knew Thomas was an informant and when they knew it.
In military courts and their civilian counterparts, prosecutors are required to disclose evidence that could help a defendant's case. The U.S. Supreme Court has found that failing to disclose evidence can be grounds for a mistrial or outright dismissal.
The results of Thursday's hearing will go back to appellate judges to decide if Claxton's claims were proven and whether to give him any form of legal redress.
The case will be closely watched for attorneys representing other academy defendants.
Thomas' role in another case at the school, the wrongful sexual contact conviction of Jamil Cooks, was brought up in an Air Force Court of Criminal Appeals ruling on Cooks' case. Judges denied that appeal, noting that Thomas had never been called as a witness and his name never appeared in evidence against Cooks.
"We also see no reasonable possibility that cadet Thomas provided any information to Air Force investigators regarding the allegations," the court wrote in upholding Cooks' conviction.
Thomas has said he helped monitor former cadet Anthony Daniels Jr., who was convicted by a 2013 court-martial of wrongful sexual contact and attempted sodomy.
Daniels unsuccessfully appealed his conviction in 2014 to the Air Force Court of Criminal Appeals, but didn't raise Thomas as an issue. Court records show that Thomas was not called as a witness in the Daniels case.
The Cooks, Daniels and Claxton cases are at the center of ongoing controversy over how the Air Force Academy handled misconduct among athletes, including a core group of football players, starting in 2010.
That misconduct was outlined in a 2014 Gazette investigation.
Claxton was recruited as a football player, Daniels was a wide receiver on the Falcon football team and Cooks was a standout linebacker.
Thomas, as an informant, told investigators about a string of incidents and alleged that women may have been drugged for purposes of sexual assault during a December 2011 party.
The Pentagon's inspector General started a probe into athlete misconduct last fall, but hasn't said when results of that review will be released.
Contact Tom Roeder: 636-0240