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In rare move, federal judge overrules military court and reopens molestation case

| Monday, July 17, 2017, 8:54 p.m.

SAN DIEGO — In a rare legal move unveiled Monday, a federal judge in San Diego has reopened a case that was tried in military court because of concerns that a sailor might have been wrongly convicted of molesting a child.

In his decision dated July 11, U.S. District Judge Gonzalo Curiel ordered federal prosecutors to respond to a petition brought by attorneys representing Navy Petty Officer James R. Rich.

Rich contends that the military violated his constitutional rights by relying on the shaky, hearsay testimony of a toddler and then allowing a biased juror to disregard the sailor's exemplary military record as the jury decided his sentence in 2014.

David Sheldon, the Washington, D.C.-based appellate attorney for Rich, praised Curiel's decision Monday. He said the military court system gave the sailor “short-shrift review and failed to address his constitutional challenges to his conviction.” Curiel's order, he added, is the “first step in righting this injustice.”

Navy legal officials declined to discuss these issues. It's customary for them to withhold comment while a case is undergoing appeal.

“I have never seen a habeas corpus (petition) where a federal court intervened in a military case. I am sure it has happened before, but it is rare,” said San Diego-based attorney Jeremiah Sullivan III, an expert in military law.

A panel of sailors convicted Rich, an aviation structural mechanic 2nd class, during a general court-martial in Norfolk, Va., for the aggravated sexual abuse of a child. It sentenced him to seven years' confinement; he's imprisoned in the Miramar brig, and the local proximity explains why his federal court case was heard in San Diego.

In early 2012, Rich was living with a girlfriend and her 3-year-old daughter in Virginia Beach, Va. One evening, the child allegedly told her mother that she had performed oral sex on Rich. The mom repeated it to authorities, and Rich was arrested.

Rich said the girl might have mistakenly seen a video of a consensual act between him and his girlfriend recorded on his mobile phone. He never stopped professing his innocence.

The military judge conceded that the preschooler's recollections 2 12 years later failed to fully match what she had initially told her mother and criminal investigators. However, the judge allowed the girl's “clear, voluntary, uncontrived and spontaneous” utterances into the trial.

After a jury of Rich's peers convicted him, it was supposed to weigh his otherwise outstanding military record when deciding his punishment. A lieutenant later told attorneys in a separate criminal case that he focused solely on the alleged crime and not Rich's military decorations and the glowing testimony of a supervisor.

On March 28, the U.S. Court of Appeals for the Armed Forces in Washington, D.C., denied Rich's bid to reopen his case. The tribunal unanimously ruled that the girl's testimony was sufficiently credible, and it said the nature of the alleged crime — oral penetration without ejaculation when no one else was home — would fail to create additional corroborating evidence.

It took more than a year for Rich's appeal to percolate up to U.S. District Court.

Federal prosecutors are expected to file a response to Curiel's order by Aug. 11.

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