Jurisdiction Is Everywhere. It Hit Me On The Head.
Cadet 1/C Michael Shermot, USCG was charged with sexual assault by impairment, meaning the alleged victim was unable to consent. His court-martial was held in Norfolk, Va.
Cadet Shermot was suspended from the corps of cadets on Dec. 29, 2015. He was a member of the wrestling team and a native of Shillington, Pa., according to the academy’s athletics website.
He faces up to 30 years in prison, dismissal from the Coast Guard and total forfeiture of all pay and allowances.
The alleged assault occurred in Westchester, Pa., sometime between Sept. 4 and 5 of 2015, according to Santos, a Coast Guard spokesman.
The Coast Guard Investigative Service (CGIS) became involved in the case after a civil investigation was started by local police in Westchester.
After concerns were made about Cadet Shermot’s military status and some of the witnesses involved in the case, the decision was made to have the Coast Guard take over jurisdiction of the case, said Lt. Cmdr. Rob Stiles, a legal instructor at the academy.
LCDR Stiles was previously the chief of military justice for the Coast Guard Legal Service Command.
Cadet Shermot was been reassigned to the Coast Guard’s yard in Baltimore, Md., while he awaited court-martial. He was assigned work that is comparable to what a lower-grade enlisted member does.
Because the military has much more control over the movements of its members, pretrial confinement is usually not used unless the person is a flight risk or poses an imminent threat, Stiles said.
THERE IS NO JUSTICE IN MILITARY JUSTICE, ONLY PUNISHMENT.
The Uniform Code of Military Justice (UCMJ) specifically requires active duty personnel to follow all applicable rules of military conduct, whether on or off duty, or on or off base. Furlough, a temporary leave of absence from the military, does not change this Rule.
The UCMJ is federal law and as such, is not enforced by civilian law enforcement. The UCMJ is instead enforced by federal officers and federal military courts. This has practical implications for enforcement, especially because local law enforcement may not be aware of certain proscriptions on military life. Further, local police have no direct legal authority for enforcing breaches of the UCMJ.
Many crimes under the UCMJ such as murder, rape or robbery, are defined the same way as they are in a civilian court. If a solider commits a crime off-base, and is caught by local law enforcement, the solider will still be under the jurisdiction of the UCMJ. The soldier will be tried for their crime in the military courts.
The military justice system also enforces crimes under the UCMJ that are outside the realm of the civilian courts. However, this does not mean that local law enforcement is required to enforce these UCMJ provisions when a soldier is off-base. For example, the UCMJ prohibits certain adulterous conduct by active military members. This means that if an active military member is caught engaging in adulterous conduct, even if they are off-base, they may be still be subject to military law.
If an off-base soldier engages in adulterous conduct, local law enforcement does not have the responsibility of charging the solider with the breach of the UCMJ. Law enforcement may inform the military that the off-base solider breached the UCMJ, however, they are not obligated to. Further, civilian agencies may have jurisdiction over some off-base conduct that they are not required to inform the military of. Domestic violence incidents are an example of this type of conduct.
The Issue of Personal and Subject Matter Jurisdiction was settled forever by the Supreme Court U.S. Supreme Court
Solorio v. United States, 483 U.S. 435 (1987). It was a COAST GUARD Case.
The case presented the question whether the jurisdiction of a court-martial convened pursuant to the UCMJ to try a member of the Armed Forces depends on the "service-connection" of the offense charged.
It does not, and the decision in O'Callahan v. Parker, 395 U. S. 258 (1969) is overrule!
The petitioner Richard Solorio, USCG was on active duty in the 17th CG Dist, Juneau, Alaska. He sexually abused two young daughters of fellow Coast Guardsmen.
He engaged in this abuse over a 2-year period until he was transferred by the CG Base Governors Island, NY.
He later committed similar sexual abuse offenses while stationed in New York.
He was charged with 14 specifications alleging indecent liberties, lascivious acts, and indecent assault in violation of U.C.M.J., Art. 134, 10 U.S.C. § 934, 6 specifications alleging assault in violation of Art. 128, 10 U.S.C. § 928, and 1 specification alleging attempted rape in violation of Art. 80, 10 U.S.C. § 880. The specifications alleged to have occurred in Alaska included all of the Article 128 and Article 80 specifications and 7 of the Article 134 specifications.
The CO convened a general court-martial to try Solorio.
There is no "base" or "post" where Coast Guard personnel live and work in Juneau.
The offenses were committed in his privately owned home.
The the fathers of the 10-12-year-old victims were active duty members of the CG assigned to the same command as Solorio.
The NY offenses involved daughters of fellow Coasties; they were committed in Government quarters on the Governors Island.
Solorio moved to dismiss the charges for crimes committed in Alaska on the ground that the court lacked jurisdiction.
Ruling that the Alaska offenses were not sufficiently "service-connected" to be tried in the military criminal justice system, the court-martial judge granted the motion to dismiss.
The Government appealed.
The Court of Military Appeals reversed stating that "not every off-base offense against a servicemember's dependent is service-connected," but "sex offenses against young children . . . have a continuing effect on the victims and their families, and ultimately on the morale of any military unit or organization to which the family member is assigned."
The test for jurisdiction . . . is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.' . . ."
Military jurisdiction has always been based on the "status" of the accused, rather than on the nature of the offense.
Military courts have identified numerous categories of offenses requiring specialized analysis of the service-connection requirement. For example, the courts have highlighted subtle distinctions among offenses committed on a military base, offenses committed off-base, offenses arising from events occurring both on and off a base, and offenses committed on or near the boundaries of a base, and other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile.
The limitations may not, in the view of the majority, be desirable, but that does not mean they do not exist.
The requirement of service-connection recognized in O'Callahan has a legitimate basis in constitutional language, and a solid historical foundation. It should be applied in this case.
Application of the service-connection requirement of O'Callahan, as further elaborated in Relford v. Commandant, U.S. Disciplinary Barracks, 401 U. S. 355 (1971), demonstrates that petitioner's Alaska crimes do not have an adequate service-connection to support the exercise of court-martial jurisdiction. Petitioner's offenses did not detract from the performance of his military duties. He committed these crimes while properly absent from his unit, and there was no connection between his assigned duties and his crimes. Nor did petitioner's crimes threaten people or areas under military control. The crimes were committed in petitioner's private home in the civilian community in Juneau, where there is not even a base for Coast Guard personnel. Petitioner's acts were not likely to go unpunished; the court-martial judge determined that the offenses were of a type traditionally prosecuted by civilian courts, that such courts were available, and that, while the Alaska courts had deferred prosecution in light of the court-martial proceeding, the State had not declined to prosecute the offenses. Nor did the crimes implicate any authority stemming from the war power; they were committed within the territorial United States while the Nation was at peace.
Moreover, the crimes caused no measurable interference with military relationships. Though the victims were dependents of Coast Guard members, the court-martial judge found that there was only de minimis military interaction between petitioner and the fathers of the victims, and that the relationships between petitioner and the families of the victims "were founded primarily upon the ages and activities of the children, and additionally upon common sporting interests, common spousal interest, and employment and neighborly relationships," rather than the connection of petitioner and the families through the Coast Guard. Because the crimes did not take place in an area within military control or have any effect on petitioner's military duties, their commission posed no challenge to the maintenance of order in the local command. The military judge found that the Government had not demonstrated any impact of the offenses on "morale, discipline, [or] the reputation or the integrity of the Coast Guard in Juneau." The only connection between the military and the offenses at issue was the fact that the victims were military dependents. But the military judge found explicitly that the military association of petitioner and the victims' fathers did not facilitate petitioner's crimes, and that "[t]he impact apparent in this case, that is, on the parents and the victims themselves, is no different than that which would be produced by civilian perpetrator."
Labels: Cadets and Crime