By Don Branum, U.S. Air Force Academy Public Affairs
/ Published March 16, 2015
U.S. AIR FORCE ACADEMY, Colo. -- Attorneys representing the government and former cadet Stephan Claxton met here March 12-13 for an evidentiary hearing to more thoroughly establish the trial of record in the case of United States v. Stephan Claxton and the role of former cadet Eric Thomas, one of 12 witnesses who testified at Claxton's court-martial in 2012.
Thomas's status as an informant at the time of the court-martial, and the government's failure to disclose his status, was at the center of this fact-finding proceeding, known as a DuBay hearing, ordered by the Court of Appeals of the Armed Forces in September.
Thomas provided testimony about incidents in March and November 2011 in which Claxton had been accused of sexual assault. Thomas accumulated more than 200 demerits related to those two incidents, which led to his own disenrollment in April 2013.
Thomas testified that his first contact with the Air Force Office of Special Investigations took place shortly after a party in Divide, Colo., in December 2010. He said Special Agent Michael Munson, who worked at AFOSI Detachment 808 here, pitched the idea of becoming a confidential informant to him.
"Having this opportunity felt like I'd be doing the right thing," Thomas said. "If I could make a change, if I could do the right thing, of course I would."
Thomas testified that he signed a declaration of agreement with Munson, and he believed his confidential employment work began prior to the incidents involving Claxton in March and November 2011.
But former Special Agent Brandon Enos, who was Thomas's handler at the Air Force Office of Special Investigations Detachment 808 here, said that while Munson had Thomas fill out some paperwork, he was never officially recruited as a confidential informant and never tasked him as a confidential source.
Thomas said in testimony March 12 that he was not afraid of being disenrolled. However, testimony by Enos said fear of disciplinary action for the two incidents was a factor behind Thomas' decision to make an in-depth statement to OSI in December 2011.
"He knows some big hits are coming down the road before he started working with you," defense attorney Frank Spinner asked Enos during cross-examination.
"That's correct," Enos said. Thomas was pending a scrub, which is a hearing with commissioned officers in the Cadet Wing and cadet leaders to discuss a cadet's misconduct.
"So the motivation for him to work with you was his misconduct," Spinner asserted. "On one hand, he's holding out an image of wanting to do the right thing, but he's bringing a lot of baggage with him, and it's all related to what he was doing with Claxton."
Thomas completed a written statement after the November 2011 incident by order of his air officer commanding. That statement led to an interview with OSI, wherein Thomas said he self-admitted the incident in March.
However, Enos said that OSI was already aware of the March incident because of the statement from the victim in the November incident.
Thomas' December 2011 statement was a gold mine for OSI, Enos said.
"I could never have imagined in my wildest dreams so much information coming from one statement," he said. "We had a lot of work to do after that."
"He came back with way more information than we would have thought possible," Enos said. "We had to be sure of the information, so we ordered a polygraph examination, and he passed."
Thomas's statement kicked off an investigation into drug use and distribution among cadet athletes known as Operation Gridiron. About half of the cadets investigated were cleared, but several faced non-judicial punishment and were disenrolled.
However, Operation Gridiron didn't kick off until January 2012, and Claxton was not a target.
"(Thomas's) work as an informant wasn't focused on Claxton," said former Special Agent Tyler Rube, who also worked at OSI Detachment 808. "We could have him testify as Cadet Thomas at the court-martial and essentially not blow his cover."
"We had victims' testimony, the failed polygraph and statements by Claxton," he added. "By December (2011), we felt we had enough evidence to move forward."
In closing arguments, Spinner argued that the prosecution's failure to disclose Thomas' involvement with OSI compromised Claxton's due process.
"'The confidential source (Thomas) is motivated to work with OSI due to his high number of demerits,'" Spinner said, citing a piece of evidence offered during the hearing. "'He will do anything he can to remain at the Air Force Academy.' The importance of having that information for the defense should be obvious. There's one individual who was involved in every specification and every allegation other than my client, Cadet Claxton, and it's Eric Thomas."
Spinner intimated that Thomas's belief that he was working for Munson as an informant in 2011, before he was officially enrolled into the confidential source program, may have led him to "set up" Claxton. But Capt. Richard Schrider, representing the government, didn't buy it.
"There's not a speck of evidence," Schrider said, "that suggests Thomas made Claxton do it."
Whether Thomas thought he was a confidential informant was irrelevant, Schrider said.
"This is a discovery issue. It's the government's responsibility to provide information the government has control over," he said.
And Schrider reinforced Rube's statement that the government's case was sound even without Thomas's witness testimony.
"A number of additional witnesses corroborated all of the important points" regarding Thomas' testimony as well as the testimony of sexual assault victims in the March and November 2011 incidents, Schrider said. Additional evidence in the government's case included text messages Claxton sent illustrating his guilty conscience and statements from Claxton that Schrider called "extremely damaging."
"And to put a bow on it," he said, "Thomas was not a confidential informant until December 2011."
"The unavoidable conclusion is that even if there was a discovery error, it was harmless beyond a reasonable doubt," Schrider concluded.
A DuBay hearing is a procedure ordered by a military appellate court, in this case the Court of Appeals for the Armed Forces, to make additional findings of fact and conclusions of law related to a specific issue not covered in the original trial. Richardson's findings of fact and conclusions of law are due to the Air Force Court of Criminal Appeals by March 31.