Air Force Academy – An academy cadet was found not guilty Thursday of charges he raped a fellow cadet during a field trip.
He was found guilty, however, of a separate indecency charge.
But the split decision, and surprise testimony about whether the charges were proper in the first place, forced an abrupt halt Thursday evening to the sentencing phase of the court- martial of Cadet Benjamin Kuster.
Kuster, of Iowa, was found not guilty by a military jury of five officers – four men and a woman – of raping the fellow cadet during a scuba-club trip to New Mexico in May 2004.
He was convicted on the separate indecent-act charge for having sex with his girlfriend in front of other cadets who were trying to sleep in the New Mexico hotel room where the group was staying. The jury deliberated about three hours.
Kuster’s accuser – now a second lieutenant – maintained that she was asleep when Kuster had nonconsensual sex with her.
Just before the jury was about to begin considering Kuster’s sentence – up to five years in prison – Kuster’s defense team dropped a bombshell by bringing Master Sgt. Charles Jetton to the witness stand.
Jetton testified that Maj. Tyler Prevett, Kuster’s squadron commander, who charged the cadet with rape and indecent acts on Nov. 22, did so with assurance from Maj. Joseph Imburgia, a former academy lawyer, that the government would not proceed with indecent-act charges if Kuster was acquitted of rape.
Military judge Lt. Col. James Flanary then halted the case until this morning. He ordered Prevett, who is now at McGuire Air Force Base in New Jersey, to testify by telephone today.
Flanary said that depending upon how Prevett testifies, the defense may have opened “a whole new can of worms to look into.”
The defense team of Richard Stevens, a civilian defense lawyer from Washington, D.C., and military lawyers Capt. Gwen Beitz and Capt. Jenny Johnson will ask for the indecent-act charge to be dismissed. If it is dismissed, Kuster will graduate from the academy and go to pilot training.
“My position is that they’re (military lawyers) withdrawing from this agreement, that the fraud was perpetrated on the commander who preferred the charge, and that is certainly not the way this legal process is supposed to go forward, where people are preferring charges based on assurances that are then withdrawn,” Stevens said.
There is no written record of the agreement, though Prevett sent an e-mail to Jetton’s office on Monday saying he had made the agreement.
Stevens said an indecent- acts charge is not generally one that reaches this level in the military judicial system.
“You have to believe there is enough evidence to go forward. … But this is not the kind of charge you deal with in a court-martial,” Stevens said.
Stevens said Kuster should not have a federal conviction on his record when Katherine Ivey, Kuster’s girlfriend, “received a letter of admonishment, which is below a letter of reprimand. Basically, she got yelled at on a piece of paper.”
Ivey graduated with academic distinction Wednesday and is headed to medical school. Stevens said he was pleased that the jury acquitted Kuster of rape.
“I’m pleased. I’m relieved. I’m grateful to the members (of the jury) for spending that amount of time and going over the evidence and coming back with a result that I think is justified,” Stevens said.
Staff writer Erin Emery can be reached at 719-522-1360 or eemery@denverpost.com.