Spokane7
50°
June 16, 2010 in City
Survival instructor found not guilty of rape
A Spokane jury found a former civilian survival instructor at Fairchild Air Force Base not guilty of rape and assault today.
Michael W. Fassbender, 32, smiled as the jury read the verdict. He left the court without comment.
Most of the 11-man, one-woman jury declined comment, but one of them said in passing: “It was a difficult decision.”
Defense attorney Christian Phelps called it a difficult, emotional case.
“The evidence wasn’t there for a conviction. From the beginning, Mr. Fassbender denied these allegations and chose to go to trial despite the enormous penalties he would have received if convicted.”
The jury deliberated about three hours today before finding Fassbender not guilty of three counts of first-degree rape and one count of second-degree assault with sexual motivation. The potential penalty could have been up to life in prison.
After the decision, a smiling Fassbender asked Phelps if he was free to go and promptly left with friends and family.
Across the aisle, the 27-year-old woman who made the allegations sobbed as her family offered support.
Deputy Prosecutor Sharon Hedlund had an appointment and could not attend the verdict. But on Tuesday, she argued that Fassbender took advantage of the woman he had met for the first time in person after chatting a few days over an Internet dating service.
“If it happened just the way Mr. Fassbender said, what’s the motive … crazy female thing? Everything goes the way he suggests it goes. If he follows every one of her demands, why does she become hysterical … and go to law enforcement?”
According to court testimony, Fassbender, who until 2009 worked as a survival instructor for civilian contractor SERE Solutions, gave the woman a tour of secure facilities at Fairchild Air Force Base.
He took her to a mock prisoner of war camp and showed her facilities where military personnel are trained to resist giving information to their captors.
During intercourse, Fassbender admitted choking the woman but he said he didn’t know that she had passed out. The woman testified that she told him to stop, but he choked her to unconsciousness and she awoke to find Fassbender raping her.
“What happened out there was the worst thing that can happen to a woman,” Hedlund said. “Mr. Fassbender would have you believe that this was all her choice. But the choice she made is the only one that get her out of there alive — she went along.”
But Phelps argued that the woman’s story kept changing and that she told Fassbender that she liked rough sex.
“It’s pretty simple. You have two stories. You get to choose who to believe,” Phelps told the jury on Tuesday. “She made every effort not to let Mr. Fassbender know that she was scared.”
As he gave his final argument, the woman began crying so hard she had to be escorted out of the courtroom.
“It was consensual,” Phelps said. “She ultimately admitted that she put her hands up in the air and allowed her shirt to be pulled off. Is that consent? All of this conduct was indicative of willing” participation.
“Calling this a rape doesn’t make it a rape,” he said. “She invited that conduct and asked … for it.”
Man dies following early Saturday accident 
Orange on June 16 at 4:44 p.m.
Deputy Prosecutor Sharon Hedlund had an appointment and could not attend the verdict.
I seriously can’t believe this prosecutor put 100% into this case.
Diana on June 16 at 4:58 p.m.
“She invited that conduct and asked … for it.”
Yep, that defense has been around forever. Disgusting.
pray4thevictims on June 16 at 5:57 p.m.
Unbelievable!
Shame , shame on the 11 man 1 woman jury. Ask yourselves would this douchebag be not guilty if it was your daughter or sister who was brutally attacked?
Why was it allowed to have a jury with 11 men? Especially white, middle aged (or over) red neck men that all like to hunt and fish in their spare time.
When a person is choked to the point of unconciousness it becomes difficult to say NO.
I hope the victim can file suit against SERE and the US Airforce for allowing this to happen.
Struensee on June 16 at 7:04 p.m.
HAMLET:
“Let Hercules himself do what he may,
The cat will mew and dog will have his day.”
Shakespeare — “Hamlet” (Act 5, Scene 1)
Mr. Fassbender has obviously had his “day,” lucky him, but will he have learned his lesson — that is the abiding question? Regardless, his name and reputation are forever tainted by his actions, even if excused by a jury of his “peers.” And not least, there is now a dark shadow upon SERE Solutions Inc. and the quality of employees they provide to the government, that is our government.
I imagine there are civil legal remedies against Mr. Fassbender still available at the hands of his victim. In the long run, the military SERE community has shed an unpredictable, loathsome, and still ticking time bomb. And so, on to drafting intelligent policies and regulations that prevent this sort of incident from occurring again in military SERE facilities.
jddavis on June 16 at 9:42 p.m.
Spokane09, are you saying that men are incapable of evaluating the evidence presented to them? or are you saying that it is a “guys stick together” thing where gender outweighs reason? or possibly the lone female jurist went along with the male pack mentality so as not to cause a hung-jury?
I suspect that you learned the “facts” of this case from the newspaper or tv, which doesn’t present the story in its entirety or provide you the opportunity to evaluate the evidence presented to the jury. Did you receive a copy of the instructions to the jury, which are essentially conditions that must be met to find Mr. Fassbender guilty?
I don’t know many of the facts, however, I trust the jury made their decision based on information and evidence provided—which is the way our judicial system is designed. Seems you have some pretty strong assumptions of the male jurists based on emotions, not facts.
Struensee on June 18 at 5:47 a.m.
jddavis might recall that not so long ago all white juries used to routinely hear and pass judgment on defendants of color, frequently so in trials that resulted in capital punishment. Or such juries practiced jury nullification in trials involving white defendants accused of murdering blacks. In those sad cases the white male citizens of the community stuck together and said the jury simply heard the evidence and what resulted was justice. Well, justice has always been a relative concept — often tied to “community standards” and prejudices. Still is. What happened here, in terms of the 11/12 male composition of the jury, and the twisted logic of the jury deliberation instruction, was a species of what was once rough justice in the South. We know today that racial-packed juries are unconstitutional, obviously there is still work to be done against gender-packed juries in cases involving sexual violence against women. The prosecutor in this case might alternatively consider a career in real estate law, because by this case her effectiveness in defending the public in criminal law is placed in doubt. And not least, crocodile tears for the defendant’s career and reputation.
jddavis on June 18 at 4:59 p.m.
Oh yes, I recall race packed juries finding the defendent of their race not guilty, in the face of overwhelming evidence—OJ?
So what you are saying Struensee, is that this jury not only did not come to the correct verdict, but was unable to because of a variation of “rough justice in the South”? Using that logic, I could assert that if Mr. Fassbender were truely tried by a jury of his peers (no females on the jury) the “Not Guilty” verdict would have been returned much quicker. Further, using your logic no one would ever be convicted of anything as there would always be some sort of bias claimed, real or imagined.
What exactly was the twisted logic contained in the jury instruction(s)? I wonder if the prosecutor eliminated any females from the jury pool, or for that matter, did the judge during further review during jury selection.
schn6935 on June 19 at 7:26 p.m.
jddavis- You have already admitted you do not know all of the facts of this case. Not many people do. The jurors did not know even half of what they needed to know to make the correct decision. Did you know that his bond was set at $20,000, requiring only a tenth of that to walk free the day after his arrest? Did you know he lives with his brother and sister-in-law, JUDGE Fassbender? Did you know the judge who set his bail was a mentor to Judge Fassbender during their days together at Gonzaga? Did you know he has a history of domestic violence, including child abuse (his own daughter) and attempted rape (his ex-wife) and that all of this was taken care of very neatly by JUDGE Fassbender? This entire trial was a sham. I don’t blame the jurors. People cannot help but make the best decisions they know how with the information at hand and their inevitable inherent prejudices. That is why we take it out of their hands and ensure that a jury is fair, not one race, not one gender. But this wasn’t really a trial, after all, just a facade for corruption. Every member of this community should be outraged that THIS is what our justice system has become. But don’t take my word for it… do a little more research than the couple of paragraphs in this article. Use your head. Don’t just have faith in the system… that’s what makes corruption so easy to pull off after all… blind faith.
eagleproducer on June 21 at 9:38 a.m.
Fassbender used to be my favorite German filmmaker… looks like it’s back to Otto Preminger.
schn6935: If what you’ve written is true then I’d love to see the Spokesman Review follow up on your assertions. It will probably be right next to the story where the connection between the County Assessor’s office and Cowles family property devaluations is revealed.
The prosecutor should be sanctioned for allowing the seating of a jury with such an obvious gender bias. Violence against women has been normalized in our culture to the point where defensive submission is viewed as consent. Why were there three charges of first degree rape from one incident? I believe the nature of the charges and the possible penalties were a huge determinant of the outcome of what, if schn6935’s assertions are correct, amounts to a sham trial.
entropiii on June 22 at 3:26 p.m.
If all the evidence they had to go off of was her word against his, Im suprised this went to trial in the first place…? There may be more to the story here…
In any case, I’ve served on juries before and I cannot imagine having to be a juror on something as difficult as a rape case. the fact is, a juror is required to go off of the facts of the case, some of which us readers may not be privvy to. Going off of gut feelings and someone’s word alone have put alot more innocent folks in prison for the rest of thier lives than left bad people out on the street. What’s more, most of the innocent that have been convicted will never see the light of day while the bad guys eventually do bad things again and get caught.
Right, wrong, or indifferent I dont envy this jury’s task. Personally to me it does sound like this bastage got away with it from the alleged victim’s reaction. Sad…
schn6935 on July 02 at 3:58 p.m.
This was not her word against his. She convinced him that she would not tell anyone, so he returned her to her car, then she went to the hospital where she sat through a full rape kit examination. Forensic evidence included photographs of her battered body, including a black eye and strangulation marks on her throat, as well as his semen and her blood both on her body and found at the scene (all over) when the police went to the site that night. The emergency physician who examined her testified as to the conditions of her wounds, the bruises, blood, cuts, and scrapes, as well as vaginal and anal lacerations and swelling from forced penetration. She wasn’t some girl who drank too much and regretted it the next day as she has somehow been portrayed… she was the victim of a violent rape who went for help the moment she was free. This is horrific and we should all be appalled. We should either demand an inquest into the entire Spokane District Court system, or give up and admit that we have finally rid ourselves of all humanity.