A judge gave hope to the family of a soldier convicted of sexual assault last week when he said he plans to recommend the conviction be overturned.
During the sentencing phase of Pfc. Thomas A. Chestnut Jr.’s court-martial July 2, Col. Gregory Gross said he researched how to overturn the conviction himself, but he couldn’t find a way to do it.
“I’ll recommend the convening authority overturn the conviction,” the judge said.
Chestnut was found guilty by a military jury June 24 of one specification of sexual assault and found not guilty of one specification of assault consummated by a battery. He was sentenced July 2 to three years in prison, reduction in rank to private and a dishonorable discharge.
“It definitely gives us hope and we are very glad to see that someone is seeing things correctly,” said Melissa Chestnut, the soldier’s mother. “We’re definitely staying positive and we’re going to try to get as much information as we can to the appeals council and convening court to see issues that shouldn’t have happened through it and hopefully get it all overturned. We’re hoping to get more public support so hopefully the public can help make it right.”
She and her son both stand by his innocence, saying his only mistake was to get involved with another soldier. A military legal expert said Gross must see something wrong with the conviction as well.
“It’s extraordinary,” said retired Lt. Col. Geoffrey S. Corn, a law professor at South Texas College of Law. “What that tells you is Judge Gross ... is just convinced that an innocent person has been convicted.”
Maj. Gen. Michael Bills, 1st Cavalry Division commander, is the convening authority in Chestnut’s court-martial. No commander has overturned a conviction at Fort Hood over the past year, according to III Corps officials.
Chestnut’s conviction stems from an incident with a male soldier in his Fort Sam Houston barracks room in August 2012. Chestnut, 25, is an openly gay medic from Dripping Springs assigned to the 1st Cavalry Division’s 3rd Brigade Combat Team.
In an unsworn statement, Chestnut said he had an encounter with the victim, who was taking Ambien at the time. Chestnut said he didn’t know about the sleeping medication and thought the interaction was consensual.
“I wish that I had spoken up for myself sooner, and I am sorry for that,” he told the panel of eight Army officers. “In those 45 minutes had I known ... It was not worth this.”
He continued, saying he attempted to take his own life following his conviction. He said his biological father is a registered sex offender, but the difference between them is his dad really did commit the crime.
“To think I would put myself in this position ... I would rather die,” Chestnut said. It was the thought of his family that stopped him. “You’re worth more than that and having to go through this,” he said to them from the stand.
Melissa Chestnut said her son’s roommate — not the victim — told authorities he witnessed a sexual assault after getting in trouble for having too much alcohol in the barracks.
“He probably shouldn’t get involved with another soldier. His roommate didn’t like it and the other soldier just went along with it to save face,” she said during an interview with the Herald.
The victim also testified in the sentencing phase via telephone from his post in Germany. He told the jury he has nightmares, difficulty trusting others and is still seeking counseling because of the sexual assault.
Outside the presence of the jury, Gross addressed Chestnut’s defense team about the victim’s counseling. He had been in therapy before the date of the assault, Gross said.
The defense chose not to cross-examine the victim on this point.
Taking its toll
During the trial phase of the court-martial, Melissa Chestnut said only the victim, roommate and an expert on the affects of Ambien testified.
“This has been very stressful for (my son) to be falsely accused of something he didn’t really do wrong,” she said. “It’s taken its toll on him — in his faith in the system and people.”
Constance Ferrell, a friend of Thomas Chestnut’s, testified during the sentencing phase of the trial on the soldier’s character. She spoke about Chestnut’s sheltered upbringing and lack of socialization.
He stopped attending formal school at age 10, and rarely left home, she said.
Farrell first met Chestnut when he began working at a Subway in Dripping Springs. He later taught himself to swim to become a certified lifeguard. While on the job, he saved a young girl’s life, Ferrell said.
“There’s a side of (Thomas) that’s incredibly naive, simple ... and not well socialized,” she told the jury. “He has this weakness he hasn’t quite overcome and it led to the situation you see today.”
A veteran herself, it was Ferrell who encouraged Chestnut to join the military. He earned his GED and enlisted as a medic, because he wanted to continue to save lives.
After Ferrell’s testimony, a member of the jury submitted a question to her, which the judge read: Do you believe Pfc. Chestnut’s unsworn statement?
“I felt like (he) told the truth in his statement,” she said.
Corn said it is possible the jury “felt some sense of obligation to return some conviction of a sexual offense because of the current atmosphere.”
The next decisive moment will come with the staff judge advocate’s recommendation to the convening authority, he said.
“One compromise ... would be to order a new trial,” Corn said. “If we’re not sure whether justice was served, let’s do it again.”