Appeals Court Judge Finds In Favor of Webster Smith
http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021
A Judge on the Coast Guard Court of Criminal Appeals found that former cadet Webster Smith was denied a fair trial and that the case should be sent back to the trial court for a new trial. He found that the Case of United States vs Webster Smith should be returned to the Convening Authority for a new trial.
Until and unless there is a reversal, this Dissent will continue to loom large. It is more properly an appeal to the brooding spirit of the law, and to the intelligence of a future day. When that day comes and this travesty of justice is reversed, then all people of goodwill can celebrate the promise of America, one nation under God, with liberty and JUSTICE for all!
The Judge found so many discretionary errors in the court-martial proceedings that he had no choice but to rule that Webster Smith had been denied a fair trial.
It was a classic case of "he-said she-said". The trial came down to simply a credibility issue. The big question was who was telling the truth and who was not.
This was a quetion for the jury to decide. It was a fact question. The jury is the trier of facts. The court-martial judge went to extraordinary lengths to keep the question out of the hands of the jury. He took it upon himself to decide the issue of credibility. That is why Webster Smith was convicted.
The jury had no idea what the real issue was. They were kept in the dark. They were not given proper instructions. The judge decided who was the more credible witness. The judge abused his discretion.
The judge went beyond the authority and power delegated to him under the Uniform Code of Military Justice, and the Federal Rules of Evidence. Webster Smith was denied his Sixth Amendment Rights.
One does not have to read the Appeals Court decision to know that an accused at a court-martial has a right to cross-examine the witnesses against him. Anyone who has watched Perry Mason or Tom Cruise in the movie "A Few Good Men", would come away with an appreciation for the fact that the jury has the responsibility to decide what the facts are and who is not telling the truth.
When a judge does not allow the jury to do its job, he commits reversible error. When a judge confuses his duties with the duties assigned to the jury, then he has abused his discretion and that constitutes reversible error.
The prosecution was allowed to ask Webster Smith questions that were like bombshells that would cave in the sides of a Sherman Tank, but on cross-examination of the principal witness, the Defense lawyers were reduced to tip-toeing through the tulips. The uncorroborated testimony of the principal witness was a roadside bomb to Webster Smith's defense.
If the jury had only been allowed to follow the Yellow Brick Road and to resolve the credibility issue itself, then, at least, the trial of Webster Smith would have had some semblance of a fair trial. The trial judge was not taking any chances. He took matters into his own hands. He jumped onto the Scales of Justice and pulled them way down on the side of the Prosecution.
In a case where the principal witness was allowed to hide behind the military judge for protection from thorough cross-examination; and where facts and perceptions may have been dispositive of the ultimate issue, Truth can be elusive. In a case where a convincing and charming fabricator of facts can sway a jury that has not been fully informed, and where the jury has only been given some of the relevant facts, the judge left a lot of room for mischief on the part of a sneaky prosecutor. The judge left a lot of room for the imagination of the jury to run wild when he allowed the Prosecutor to introduce just enough evidence to put Webster Smith in a compromising position; but he denied the Defense lawyers an opportunity to explain the contradictions by cross-examining the principal witness. Then the judge left it to the jury to "connect the dots". This was terribly unfair to the accused, Webster Smith.
Webster Smith was reduced to "a bug under a glass jar" for inspection, and the principal witnesswas kept as snug as a bug in a rug. Eventually all of this discretionary "hokus-pokus" became so egregious as to eliminate any possibility of a fair trial for Webster Smith. Finding the Truth became next to impossible.
I see no reason to waste time reciting the strained, biased, and contorted illogic of the Majority Opinion. Chief Judge Lane I McClleland was determined to bring one home for the Ole Girls' Network, no matter how rediculous the decision read. It will forever stand as one more piece of evidence to history and to the majority of reasonable people as to just how institutionally biased the Coast Guard Military Justice apparatus really is.
In the same way that cases in United States Courts of Appeals are heard by a three-judge panel, this case was heard by only 3 of the Coast Guard's Criminal Appeals judges. A majority of the active judges may decide to hear or rehear a case en banc. Parties may suggest an en banc hearing to the judges, but have no right to it. Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within a circuit or if the issue is exceptionally important, as in the case of Webster Smith. Each court of appeals also has particular rules regarding en banc proceedings. Only an en banc court or a Supreme Court decision can overrule a prior decision in that circuit; in other words, one panel cannot overrule another panel.
The Coast Guard Court of Criminal Appeals is currently constituted as follows:
Acting Chief Judge Lane I. McClelland
Judge David J. Kantor
Judge Thomas R. Cahill
Judge Gary E. Felicetti
Judge Frederick W. Tucher
Judge Michael J. Lodge
Clerk of the Court: Jane R. Lim
If there is no en banc hearing and decision, this case could be remanded for a new trial. To send the case back to the Superintendent of the Coast Guard Academy for a new trial would the only fair way and the last clear chance for the Coast Guard to remedy the errors that were committed in the court-martial of Webster Smith.
The Founding Fathers and the framers of the U S Constitution provided procedural safeguards for criminal defendents facing the awesome powers on the Federal Government with a bottomless pocket and a legion of attack dog prosecutors. They gave him; among other rights, the right to remain silent, the right to trial by jury, and the right to confront and to cross-examine the witnesses against him. These rights are inalienable. These rights cannot be taken away; not by the Government, and certainly not by a part-time trial judge.
One judge on the Coast Guard Court of Criminal Appeals saw clearly how the legal system, the Sixth Amendment to the Constitution, and the Military Rules of Evidence were misused to deny Webster Smith a fair trial.
It was due process without all of the process that was due.
It was military justice without fairness and very little justice.
It was a kangaroo court-martial.
It was (to quote Supreme Court Justice Clarence Thomas) a high tech lynching.
It is a stain on the Red, White and Blue.
It is a stench in the nostrils of a just God.
It will live in infamy.
Attorneys for former Coast Guard Academy cadet Webster Smith have filed a brief and a petition for review and appeal of his court-martial with the Court of Appeals for the Armed Forces. (Aug 2008). This is the last level of appeal before the U S Supreme Court.
The Court of Appeals for the Armed Forces (CAAF) will hear the WEBSTER SMITH case. Oral Argument has been scheduled for September 2009!
Former cadet Webster Smith had this to say:
""Often times, I lose sight of what I am fighting for. I forget why there are D.C. lawyers calling my phone or why some people go out of their way to bring up the very issues that spawned this web site. It is only when I sit back and read the most recent 41 page brief to the Court of Appeals for the Armed Forces that everything comes back to me. United States v. Webster Smith was supposed to have been an open and shut case that ended with a guilty plea about three years ago; but the case still has life. By all indication, the case has more life now than it did when many first heard about it. LT Stuart Kirkby, bless his soul, had about 100 men and women on his JAG docket. Merle Smith had a line to toe and he toed it well, with diplomatic and political savvy. The content of the brief to CAAF couldn’t have been raised as issues to the court, back when. They would have had Kirkby sanctioned and Smith barred from ever pursuing employment within the community that has defined his life, supplanted his purpose and provided for his family.
As much as this case is about people, it is also about a system. Never should a person be defeated by the investigation, itself. A person should never be influenced to make a decision about the sanctity of their freedom based on what they read about themselves in the print media or hear from nationally prominent politicians. Facts of the case, media scrutiny and the intensity of the investigation can break the best of men. Yet in still, facts-despite the media scrutiny and investigation-are often enough to get a man through it all. The latter is where I stand. Some people preferred it when negative media scrutiny over-shadowed logic or facts. To them, U.S. v. W.S. was more reasonable, more tolerable, when I didn’t say a word. It was more reasonable when most of the facts had yet to speak for me. If you believe that there is finality where I currently stand, I ask you not to insult the CAAF judges. They have already positively changed the lives of several men that I once knew.
Some of the anonymous messages to this site have ramped up recently. There are people that are infuriated that this fight continues; it was supposed to end with me breaking down in a room before anything ever went public or something, I suppose. It was supposed to be over before any testimony was scrutinized.
EXPECTATIONS
As odd as it may sound, I have embraced this whole (long) process; that includes the good and the bad. No one has to remind me of the shame, dishonor and regret because I have already coped and moved on. I have a daughter who I hope to raise as a moral and compassionate person but believe me; I first had to reconcile fatherhood with my own flaws. I wouldn’t have grown, gotten married nor had a daughter, so soon, if I remained the person that I was. That was the good that came of it and it makes me feel safe and secure. The bad, however, keeps me moving forward. It is an engine for progress; I enjoy it. Every time that I get one of those messages or hear some discouraging news, it reminds me of what I set out to fight for. No person veiled with my transgressions, would ever give up on themselves when they know that they are right. Yesterday, the Easter message at our church was about expectations. About never lowering one’s expectations, no matter what realities we face. Pastor Fleming also talked about the many ways that God turns curses into blessings. Personally, without all of the negativity and doubt, I would lose my way. I don’t remember life without it. The harsher the bite, the closer I feel I am. No matter the amount of discouragement, I have never lowered my expectations. The line of demarcation, guilty or not guilty, has long since been forgotten.
Whatever the outcome of this next stage, it will impact me and I will move on. I am simply trying to continue on with a pure and obedient heart, everything else will take care of itself. I have put all of this in God’s hands and I am watching it unfold. Don’t ask me to accept my current situation as reality, that would be lowering my expectations.""
Tuesday, November 10, 2009
United States Court of Appeals for the Armed Forces
450 E Street, Northwest
Washington, D.C. 20442-0001
SCHEDULED HEARINGS
United States v. Webster M. Smith, No. 08-0719/CG
(Appellee) (Appellant)
Counsel for Appellant: Ronald C. Machen, Esq.
Counsel for Appellee: LT Emily P. Reuter, USCG
Case Summary: GCM conviction of going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. Granted issue questions whether the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of [SR], the government’s only witness, on three of the five charges.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
DAY OF JUDGEMENT FOR WEBSTER SMITH.
Those who were not present on Tuesday, November 10, 2009 at the
United States Court of Appeals for the Armed Forces (USCAAF)
450 E Street, Northwest
Washington, D.C. 20442-0001
for the oral arguments in the case of United States v. Webster M. Smith, Case No. 08-0719/CG, missed a real burn burner.
The judges of the USCAAF are civilian judges and sit as a single panel on all cases. Typically, all five judges participate in each case. The judges came out firing questions fast and furious to the two Appellate Attorneys. The first one up was Counsel for Webster Smith: Ronald C. Machen, Esquire. He was prepared and completely unflappable. He responded to every question put to him. When he was interrupted in mid sentence, he did not forge on and try to finish his thought; he immediately responded to the Judge's question. He gave reasoned responsive answers to every question. Some judges fired hard ball questions, and one judge even offer up a soft-ball question which was answered in the same serious manner.
Then came Counsel for U S Coast Guard: LT Emily P. Reuter, USCG. She had a cold or was recovering from the Swine Flu and began by pleading for leniency because of her weakened voice. It was downhill from there for her. She did not appear to give responsive answers to most of the questions put to her. She may have not even clearly understood some of the question before she attempted to respond to them. Frequently she appeared to retreat to her notes or her brief and read the holdings from cases that she had cited in her brief. Perhaps this was her first time arguing before the court or maybe this was a case that no one else wanted to argue, but there surely was not her finest hour.
This was an appeal from a General Court-Martial (GCM) conviction for going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. The ISSUE on Appeal was whether the military judge at the court-martial at the Coast Guard Academy violated Webster Smith’s constitutional right to confront his accusers by limiting his cross-examination of Shelley Roddenbush [SR], the government’s only witness, on three of the five charges.
Counsel for each side was allowed 20 minutes to present oral argument in the case.
The judges of the USCAAF are Judge Andrew S. Effron is the Chief Judge. The other four judges are Judge James E. Baker, Judge Charles E. “Chip” Erdmann, Judge Scott W. Stucky, and Judge Margaret A. Ryan, the most recent appointee.
The first issue that they tackled was the jurisdictional issue. The Coast Guard Court of Criminal Appeals had denied a request for reconsideration on 14 May 2008. It was not clear whether this was in the Appellate Record. There was a question of how many days had elapsed from the notification of the denial to Webster Smith's attorney and the date that Attorney Machen filed his appeal to the USCAAF. The Coast Guard had sent the Notice of Denial via DHL, a German company, rather than simply using the U. S. Mail as required by the Rules of Court. Apparently there are two time periods that may be relevant under Article 67(B) of the USCAAF's Rules. One is a 61 day rule and the other is a 95 day rule.
They kept coming back to this jurisdictional issue again and again. I do not think they hammered it out definitively during the hearing. Webster Smith's attorney said that it is not in the Record that he was notified on 14 May. LT Emily P. Reuter for the USCG said that it was in the Record. I am sure the USCAAF judges will settled the issue before they issue a decision.
This is troubling because I would hate for the judges to dodge the ISSUE on Appeal because of a technicality like jurisdiction. I could hear a couple of the judges contemplating doing just that. The tone and the tenor of the questions leads me to just that conclusion. It would be a shame after all this time and effort to be cheated out of a hard and definitive decision on the ultimate ISSUE.
That being said, it is my reasoned opinion that the judges of the USCAAF are poised to reverse the conviction of Webster Smith. I feel there is better than a 60-40% chance that they will reverse the conviction by a majority vote. also, there is a 51-49% chance of a unanimous decision.
I think Judge Ryan is a swing vote. She gave Attorney Machen the hardest time. If at all possible she might do like Judge Lane I. McClelland of the Coast Guard Court of Criminal Appeals and uphold the status quo. However, I do not think she would go out on a limb and write a dissenting opinion. If the other four judges split 2-2, I think she might side with the judges who determine that a reversal is warranted because the Trial Judge abused his discretion and committed reversible error.
Judge Baker appears most eager to reverse this conviction because Webster Smith was denied his right to a fair trial. He sees this as a fair trial issue. He believes that the trial court members had a right to know what the secret was that SR wanted Webster Smith to keep, that it was of a sexual nature, that she had recently lied about it being nonconsensual when it was really consensual oral sex with an enlisted man in Norfolf, Virginia. Also, SR wanted Webster Smith to go out and lie for her so badly that she was willing to pay him with sexual favors.
Judge Baker feels this was crucial evidence that the members were entitled to know. The exact nature of the secret was crucial to Webster Smith's defense. The Trial Judge relied upon Rule 412 of the Military Rules of Evidence and allowed into evidence only the fact that Webster Smith was privy to a secret that SR wanted him to keep; and that secret concerned something that could ruin her cadet and officer career in the Coast Guard.
Even though Judge Baker is a civilian, he might have served in the military. He pointed out that there are lots of secrets that can harm one's career. It could be a secret concerning having failed a physical training exercise; or, it could be a secret involving a wardrobe or a uniform violation. The members had no way of knowing the precise nature of the secret since the trial judge protected SR from more rigorous cross-examination. They did not know that when SR was faced with rumors she lied to limit her own culpability. Giving a limiting instruction to the members was not sufficient to cure the error. It was more than harmless error. It was big, earth shaking, reversible error. It violated the Sixth Amendment of the U. S. Constitution.
As Attorney Machen so eloquently stated, SR had used the secret as a sword and a shield. It shielded her from testifying at the Article 32 investigation, and it was the sword that she used at trial to stab Webster Smith through the heart. It killed him and his career in the Coast Guard. It is what the judges referred to as the Theory of Innoculation. The secret had innoculated SR from two investigations. It saved her from testifying at the Article 32 Investigation.
LT Emily P. Reuter wanted to argue that this was not a Fair Trial issue, but it was a pattern or practice issue. As such the Trial Judge was correct to limit cross-examination of SR to stop any evidence from coming in concerning her prior sexual history or her propensity to tell lies. She argued that the Defense's Theory of the case at trial was wrong for the evidence that they were trying to elicit, and that the Trial Judge correctly used Rule 412. If he erred, it was no more than harmless error. It was not Reversible Error. She was not persuasive.
Truth crushed to earth shall rise again. The essence of truth in this case is finally coming to the surface. From where I sit, the USCAAF stands ready to right a gigantic wrong. It wants to reconsecrate the Temple of Justice in the Coast Guard. It wants to heal the wound that was inflicted on the Sixth Amendment by the trial court and the Coast Guard Court of Criminal Appeals.
Judge London Steverson
London Eugene Livingston Steverson (born March 13, 1947) was one of the first two African Americans to graduate from the United States Coast Guard Academy in 1968. Later, as chief of the newly formed Minority Recruiting Section of the United States Coast Guard (USCG), he was charged with desegregating the Coast Guard Academy by recruiting minority candidates. He retired from the Coast Guard in 1988 and in 1990 was appointed to the bench as a Federal Administrative Law Judge with the Office of Hearings and Appeals, Social Security Administration.
Early Life and Education
Steverson was born and raised in Millington, Tennessee, the oldest of three children of Jerome and Ruby Steverson. At the age of 5 he was enrolled in the E. A. Harrold elementary school in a segregated school system. He later attended the all black Woodstock High School in Memphis, Tennessee, graduating valedictorian.
A Presidential Executive Order issued by President Truman had desegregated the armed forces in 1948,[1] but the service academies were lagging in officer recruiting. President Kennedy specifically challenged the United States Coast Guard Academy to tender appointments to Black high school students. London Steverson was one of the Black student to be offered such an appointment, and when he accepted the opportunity to be part of the class of 1968, he became the second African American to enter the previously all-white military academy. On June 4, 1968 Steverson graduated from the Coast Guard Academy with a BS degree in Engineering and a commission as an ensign in the U.S. Coast Guard.
In 1974, while still a member of the Coast Guard, Steverson entered The National Law Center of The George Washington University and graduated in 1977 with a Juris Doctor of Laws Degree.
USCG Assignments.
Steverson's first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 he reported aboard the Coast Guard Cutter (CGC) Glacier [2] (WAGB-4), an icebreaker operating under the control of the U.S. Navy, and served as a deck watch officer and head of the Marine Science Department. He traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation's Antarctic Research Project in and around McMurdo Station. During the 1969 patrol the CGC Glacier responded to an international distress call from the Argentine icebreaker General SanMartin, which they freed.
He received another military assignment from 1970 to 1972 in Juneau, Alaska as a Search and Rescue Officer. Before being certified as an Operations Duty Officer, it was necessary to become thoroughly familiar with the geography and topography of the Alaskan remote sites. Along with his office mate, Ltjg Herbert Claiborne "Bertie" Pell, the son of Rhode Island Senator Claiborne Pell, Steverson was sent on a familiarization tour of Coast Guard, Navy and Air Force bases. The bases visited were Base Kodiak, Base Adak Island, and Attu Island, in the Aleutian Islands.[3]
Steverson was the Duty Officer on September 4, 1971 when an emergency call was received that an Alaska Airlines Boeing 727 airline passenger plane was overdue at Juneau airport. This was a Saturday and the weather was foggy with drizzling rain. Visibility was less than one-quarter mile. The 727 was en route to Seattle, Washington from Anchorage, Alaska with a scheduled stop in Juneau. There were 109 people on board and there were no survivors. Steverson received the initial alert message and began the coordination of the search and rescue effort. In a matter of hours the wreckage from the plane, with no survivors, was located on the side of a mountain about five miles from the airport. For several weeks the body parts were collected and reassembled in a staging area in the National Guard Armory only a few blocks from the Search and Rescue Center where Steverson first received the distress broadcast.[4]. Later a full investigation with the National Transportation Safety Board determined that the cause of the accident was equipment failure.[5]
Another noteworthy item is Steverson's involvement as an Operations Officer during the seizure of two Russian fishing vessels, the Kolevan and the Lamut for violating an international agreement prohibiting foreign vessels from fishing in United States territorial waters. The initial attempts at seizing the Russian vessels almost precipitated an international incident when the Russian vessels refused to proceed to a U. S. port, and instead sailed toward the Kamchatka Peninsula. Russian MIG fighter planes were scrambled, as well as American fighter planes from Elmendorf Air Force Base before the Russian vessels changed course and steamed back
A Judge on the Coast Guard Court of Criminal Appeals found that former cadet Webster Smith was denied a fair trial and that the case should be sent back to the trial court for a new trial. He found that the Case of United States vs Webster Smith should be returned to the Convening Authority for a new trial.
Until and unless there is a reversal, this Dissent will continue to loom large. It is more properly an appeal to the brooding spirit of the law, and to the intelligence of a future day. When that day comes and this travesty of justice is reversed, then all people of goodwill can celebrate the promise of America, one nation under God, with liberty and JUSTICE for all!
The Judge found so many discretionary errors in the court-martial proceedings that he had no choice but to rule that Webster Smith had been denied a fair trial.
It was a classic case of "he-said she-said". The trial came down to simply a credibility issue. The big question was who was telling the truth and who was not.
This was a quetion for the jury to decide. It was a fact question. The jury is the trier of facts. The court-martial judge went to extraordinary lengths to keep the question out of the hands of the jury. He took it upon himself to decide the issue of credibility. That is why Webster Smith was convicted.
The jury had no idea what the real issue was. They were kept in the dark. They were not given proper instructions. The judge decided who was the more credible witness. The judge abused his discretion.
The judge went beyond the authority and power delegated to him under the Uniform Code of Military Justice, and the Federal Rules of Evidence. Webster Smith was denied his Sixth Amendment Rights.
One does not have to read the Appeals Court decision to know that an accused at a court-martial has a right to cross-examine the witnesses against him. Anyone who has watched Perry Mason or Tom Cruise in the movie "A Few Good Men", would come away with an appreciation for the fact that the jury has the responsibility to decide what the facts are and who is not telling the truth.
When a judge does not allow the jury to do its job, he commits reversible error. When a judge confuses his duties with the duties assigned to the jury, then he has abused his discretion and that constitutes reversible error.
The prosecution was allowed to ask Webster Smith questions that were like bombshells that would cave in the sides of a Sherman Tank, but on cross-examination of the principal witness, the Defense lawyers were reduced to tip-toeing through the tulips. The uncorroborated testimony of the principal witness was a roadside bomb to Webster Smith's defense.
If the jury had only been allowed to follow the Yellow Brick Road and to resolve the credibility issue itself, then, at least, the trial of Webster Smith would have had some semblance of a fair trial. The trial judge was not taking any chances. He took matters into his own hands. He jumped onto the Scales of Justice and pulled them way down on the side of the Prosecution.
In a case where the principal witness was allowed to hide behind the military judge for protection from thorough cross-examination; and where facts and perceptions may have been dispositive of the ultimate issue, Truth can be elusive. In a case where a convincing and charming fabricator of facts can sway a jury that has not been fully informed, and where the jury has only been given some of the relevant facts, the judge left a lot of room for mischief on the part of a sneaky prosecutor. The judge left a lot of room for the imagination of the jury to run wild when he allowed the Prosecutor to introduce just enough evidence to put Webster Smith in a compromising position; but he denied the Defense lawyers an opportunity to explain the contradictions by cross-examining the principal witness. Then the judge left it to the jury to "connect the dots". This was terribly unfair to the accused, Webster Smith.
Webster Smith was reduced to "a bug under a glass jar" for inspection, and the principal witnesswas kept as snug as a bug in a rug. Eventually all of this discretionary "hokus-pokus" became so egregious as to eliminate any possibility of a fair trial for Webster Smith. Finding the Truth became next to impossible.
I see no reason to waste time reciting the strained, biased, and contorted illogic of the Majority Opinion. Chief Judge Lane I McClleland was determined to bring one home for the Ole Girls' Network, no matter how rediculous the decision read. It will forever stand as one more piece of evidence to history and to the majority of reasonable people as to just how institutionally biased the Coast Guard Military Justice apparatus really is.
In the same way that cases in United States Courts of Appeals are heard by a three-judge panel, this case was heard by only 3 of the Coast Guard's Criminal Appeals judges. A majority of the active judges may decide to hear or rehear a case en banc. Parties may suggest an en banc hearing to the judges, but have no right to it. Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within a circuit or if the issue is exceptionally important, as in the case of Webster Smith. Each court of appeals also has particular rules regarding en banc proceedings. Only an en banc court or a Supreme Court decision can overrule a prior decision in that circuit; in other words, one panel cannot overrule another panel.
The Coast Guard Court of Criminal Appeals is currently constituted as follows:
Acting Chief Judge Lane I. McClelland
Judge David J. Kantor
Judge Thomas R. Cahill
Judge Gary E. Felicetti
Judge Frederick W. Tucher
Judge Michael J. Lodge
Clerk of the Court: Jane R. Lim
If there is no en banc hearing and decision, this case could be remanded for a new trial. To send the case back to the Superintendent of the Coast Guard Academy for a new trial would the only fair way and the last clear chance for the Coast Guard to remedy the errors that were committed in the court-martial of Webster Smith.
The Founding Fathers and the framers of the U S Constitution provided procedural safeguards for criminal defendents facing the awesome powers on the Federal Government with a bottomless pocket and a legion of attack dog prosecutors. They gave him; among other rights, the right to remain silent, the right to trial by jury, and the right to confront and to cross-examine the witnesses against him. These rights are inalienable. These rights cannot be taken away; not by the Government, and certainly not by a part-time trial judge.
One judge on the Coast Guard Court of Criminal Appeals saw clearly how the legal system, the Sixth Amendment to the Constitution, and the Military Rules of Evidence were misused to deny Webster Smith a fair trial.
It was due process without all of the process that was due.
It was military justice without fairness and very little justice.
It was a kangaroo court-martial.
It was (to quote Supreme Court Justice Clarence Thomas) a high tech lynching.
It is a stain on the Red, White and Blue.
It is a stench in the nostrils of a just God.
It will live in infamy.
Attorneys for former Coast Guard Academy cadet Webster Smith have filed a brief and a petition for review and appeal of his court-martial with the Court of Appeals for the Armed Forces. (Aug 2008). This is the last level of appeal before the U S Supreme Court.
The Court of Appeals for the Armed Forces (CAAF) will hear the WEBSTER SMITH case. Oral Argument has been scheduled for September 2009!
Former cadet Webster Smith had this to say:
""Often times, I lose sight of what I am fighting for. I forget why there are D.C. lawyers calling my phone or why some people go out of their way to bring up the very issues that spawned this web site. It is only when I sit back and read the most recent 41 page brief to the Court of Appeals for the Armed Forces that everything comes back to me. United States v. Webster Smith was supposed to have been an open and shut case that ended with a guilty plea about three years ago; but the case still has life. By all indication, the case has more life now than it did when many first heard about it. LT Stuart Kirkby, bless his soul, had about 100 men and women on his JAG docket. Merle Smith had a line to toe and he toed it well, with diplomatic and political savvy. The content of the brief to CAAF couldn’t have been raised as issues to the court, back when. They would have had Kirkby sanctioned and Smith barred from ever pursuing employment within the community that has defined his life, supplanted his purpose and provided for his family.
As much as this case is about people, it is also about a system. Never should a person be defeated by the investigation, itself. A person should never be influenced to make a decision about the sanctity of their freedom based on what they read about themselves in the print media or hear from nationally prominent politicians. Facts of the case, media scrutiny and the intensity of the investigation can break the best of men. Yet in still, facts-despite the media scrutiny and investigation-are often enough to get a man through it all. The latter is where I stand. Some people preferred it when negative media scrutiny over-shadowed logic or facts. To them, U.S. v. W.S. was more reasonable, more tolerable, when I didn’t say a word. It was more reasonable when most of the facts had yet to speak for me. If you believe that there is finality where I currently stand, I ask you not to insult the CAAF judges. They have already positively changed the lives of several men that I once knew.
Some of the anonymous messages to this site have ramped up recently. There are people that are infuriated that this fight continues; it was supposed to end with me breaking down in a room before anything ever went public or something, I suppose. It was supposed to be over before any testimony was scrutinized.
EXPECTATIONS
As odd as it may sound, I have embraced this whole (long) process; that includes the good and the bad. No one has to remind me of the shame, dishonor and regret because I have already coped and moved on. I have a daughter who I hope to raise as a moral and compassionate person but believe me; I first had to reconcile fatherhood with my own flaws. I wouldn’t have grown, gotten married nor had a daughter, so soon, if I remained the person that I was. That was the good that came of it and it makes me feel safe and secure. The bad, however, keeps me moving forward. It is an engine for progress; I enjoy it. Every time that I get one of those messages or hear some discouraging news, it reminds me of what I set out to fight for. No person veiled with my transgressions, would ever give up on themselves when they know that they are right. Yesterday, the Easter message at our church was about expectations. About never lowering one’s expectations, no matter what realities we face. Pastor Fleming also talked about the many ways that God turns curses into blessings. Personally, without all of the negativity and doubt, I would lose my way. I don’t remember life without it. The harsher the bite, the closer I feel I am. No matter the amount of discouragement, I have never lowered my expectations. The line of demarcation, guilty or not guilty, has long since been forgotten.
Whatever the outcome of this next stage, it will impact me and I will move on. I am simply trying to continue on with a pure and obedient heart, everything else will take care of itself. I have put all of this in God’s hands and I am watching it unfold. Don’t ask me to accept my current situation as reality, that would be lowering my expectations.""
Tuesday, November 10, 2009
United States Court of Appeals for the Armed Forces
450 E Street, Northwest
Washington, D.C. 20442-0001
SCHEDULED HEARINGS
United States v. Webster M. Smith, No. 08-0719/CG
(Appellee) (Appellant)
Counsel for Appellant: Ronald C. Machen, Esq.
Counsel for Appellee: LT Emily P. Reuter, USCG
Case Summary: GCM conviction of going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. Granted issue questions whether the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of [SR], the government’s only witness, on three of the five charges.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
DAY OF JUDGEMENT FOR WEBSTER SMITH.
Those who were not present on Tuesday, November 10, 2009 at the
United States Court of Appeals for the Armed Forces (USCAAF)
450 E Street, Northwest
Washington, D.C. 20442-0001
for the oral arguments in the case of United States v. Webster M. Smith, Case No. 08-0719/CG, missed a real burn burner.
The judges of the USCAAF are civilian judges and sit as a single panel on all cases. Typically, all five judges participate in each case. The judges came out firing questions fast and furious to the two Appellate Attorneys. The first one up was Counsel for Webster Smith: Ronald C. Machen, Esquire. He was prepared and completely unflappable. He responded to every question put to him. When he was interrupted in mid sentence, he did not forge on and try to finish his thought; he immediately responded to the Judge's question. He gave reasoned responsive answers to every question. Some judges fired hard ball questions, and one judge even offer up a soft-ball question which was answered in the same serious manner.
Then came Counsel for U S Coast Guard: LT Emily P. Reuter, USCG. She had a cold or was recovering from the Swine Flu and began by pleading for leniency because of her weakened voice. It was downhill from there for her. She did not appear to give responsive answers to most of the questions put to her. She may have not even clearly understood some of the question before she attempted to respond to them. Frequently she appeared to retreat to her notes or her brief and read the holdings from cases that she had cited in her brief. Perhaps this was her first time arguing before the court or maybe this was a case that no one else wanted to argue, but there surely was not her finest hour.
This was an appeal from a General Court-Martial (GCM) conviction for going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. The ISSUE on Appeal was whether the military judge at the court-martial at the Coast Guard Academy violated Webster Smith’s constitutional right to confront his accusers by limiting his cross-examination of Shelley Roddenbush [SR], the government’s only witness, on three of the five charges.
Counsel for each side was allowed 20 minutes to present oral argument in the case.
The judges of the USCAAF are Judge Andrew S. Effron is the Chief Judge. The other four judges are Judge James E. Baker, Judge Charles E. “Chip” Erdmann, Judge Scott W. Stucky, and Judge Margaret A. Ryan, the most recent appointee.
The first issue that they tackled was the jurisdictional issue. The Coast Guard Court of Criminal Appeals had denied a request for reconsideration on 14 May 2008. It was not clear whether this was in the Appellate Record. There was a question of how many days had elapsed from the notification of the denial to Webster Smith's attorney and the date that Attorney Machen filed his appeal to the USCAAF. The Coast Guard had sent the Notice of Denial via DHL, a German company, rather than simply using the U. S. Mail as required by the Rules of Court. Apparently there are two time periods that may be relevant under Article 67(B) of the USCAAF's Rules. One is a 61 day rule and the other is a 95 day rule.
They kept coming back to this jurisdictional issue again and again. I do not think they hammered it out definitively during the hearing. Webster Smith's attorney said that it is not in the Record that he was notified on 14 May. LT Emily P. Reuter for the USCG said that it was in the Record. I am sure the USCAAF judges will settled the issue before they issue a decision.
This is troubling because I would hate for the judges to dodge the ISSUE on Appeal because of a technicality like jurisdiction. I could hear a couple of the judges contemplating doing just that. The tone and the tenor of the questions leads me to just that conclusion. It would be a shame after all this time and effort to be cheated out of a hard and definitive decision on the ultimate ISSUE.
That being said, it is my reasoned opinion that the judges of the USCAAF are poised to reverse the conviction of Webster Smith. I feel there is better than a 60-40% chance that they will reverse the conviction by a majority vote. also, there is a 51-49% chance of a unanimous decision.
I think Judge Ryan is a swing vote. She gave Attorney Machen the hardest time. If at all possible she might do like Judge Lane I. McClelland of the Coast Guard Court of Criminal Appeals and uphold the status quo. However, I do not think she would go out on a limb and write a dissenting opinion. If the other four judges split 2-2, I think she might side with the judges who determine that a reversal is warranted because the Trial Judge abused his discretion and committed reversible error.
Judge Baker appears most eager to reverse this conviction because Webster Smith was denied his right to a fair trial. He sees this as a fair trial issue. He believes that the trial court members had a right to know what the secret was that SR wanted Webster Smith to keep, that it was of a sexual nature, that she had recently lied about it being nonconsensual when it was really consensual oral sex with an enlisted man in Norfolf, Virginia. Also, SR wanted Webster Smith to go out and lie for her so badly that she was willing to pay him with sexual favors.
Judge Baker feels this was crucial evidence that the members were entitled to know. The exact nature of the secret was crucial to Webster Smith's defense. The Trial Judge relied upon Rule 412 of the Military Rules of Evidence and allowed into evidence only the fact that Webster Smith was privy to a secret that SR wanted him to keep; and that secret concerned something that could ruin her cadet and officer career in the Coast Guard.
Even though Judge Baker is a civilian, he might have served in the military. He pointed out that there are lots of secrets that can harm one's career. It could be a secret concerning having failed a physical training exercise; or, it could be a secret involving a wardrobe or a uniform violation. The members had no way of knowing the precise nature of the secret since the trial judge protected SR from more rigorous cross-examination. They did not know that when SR was faced with rumors she lied to limit her own culpability. Giving a limiting instruction to the members was not sufficient to cure the error. It was more than harmless error. It was big, earth shaking, reversible error. It violated the Sixth Amendment of the U. S. Constitution.
As Attorney Machen so eloquently stated, SR had used the secret as a sword and a shield. It shielded her from testifying at the Article 32 investigation, and it was the sword that she used at trial to stab Webster Smith through the heart. It killed him and his career in the Coast Guard. It is what the judges referred to as the Theory of Innoculation. The secret had innoculated SR from two investigations. It saved her from testifying at the Article 32 Investigation.
LT Emily P. Reuter wanted to argue that this was not a Fair Trial issue, but it was a pattern or practice issue. As such the Trial Judge was correct to limit cross-examination of SR to stop any evidence from coming in concerning her prior sexual history or her propensity to tell lies. She argued that the Defense's Theory of the case at trial was wrong for the evidence that they were trying to elicit, and that the Trial Judge correctly used Rule 412. If he erred, it was no more than harmless error. It was not Reversible Error. She was not persuasive.
Truth crushed to earth shall rise again. The essence of truth in this case is finally coming to the surface. From where I sit, the USCAAF stands ready to right a gigantic wrong. It wants to reconsecrate the Temple of Justice in the Coast Guard. It wants to heal the wound that was inflicted on the Sixth Amendment by the trial court and the Coast Guard Court of Criminal Appeals.
Judge London Steverson
London Eugene Livingston Steverson (born March 13, 1947) was one of the first two African Americans to graduate from the United States Coast Guard Academy in 1968. Later, as chief of the newly formed Minority Recruiting Section of the United States Coast Guard (USCG), he was charged with desegregating the Coast Guard Academy by recruiting minority candidates. He retired from the Coast Guard in 1988 and in 1990 was appointed to the bench as a Federal Administrative Law Judge with the Office of Hearings and Appeals, Social Security Administration.
Early Life and Education
Steverson was born and raised in Millington, Tennessee, the oldest of three children of Jerome and Ruby Steverson. At the age of 5 he was enrolled in the E. A. Harrold elementary school in a segregated school system. He later attended the all black Woodstock High School in Memphis, Tennessee, graduating valedictorian.
A Presidential Executive Order issued by President Truman had desegregated the armed forces in 1948,[1] but the service academies were lagging in officer recruiting. President Kennedy specifically challenged the United States Coast Guard Academy to tender appointments to Black high school students. London Steverson was one of the Black student to be offered such an appointment, and when he accepted the opportunity to be part of the class of 1968, he became the second African American to enter the previously all-white military academy. On June 4, 1968 Steverson graduated from the Coast Guard Academy with a BS degree in Engineering and a commission as an ensign in the U.S. Coast Guard.
In 1974, while still a member of the Coast Guard, Steverson entered The National Law Center of The George Washington University and graduated in 1977 with a Juris Doctor of Laws Degree.
USCG Assignments.
Steverson's first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 he reported aboard the Coast Guard Cutter (CGC) Glacier [2] (WAGB-4), an icebreaker operating under the control of the U.S. Navy, and served as a deck watch officer and head of the Marine Science Department. He traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation's Antarctic Research Project in and around McMurdo Station. During the 1969 patrol the CGC Glacier responded to an international distress call from the Argentine icebreaker General SanMartin, which they freed.
He received another military assignment from 1970 to 1972 in Juneau, Alaska as a Search and Rescue Officer. Before being certified as an Operations Duty Officer, it was necessary to become thoroughly familiar with the geography and topography of the Alaskan remote sites. Along with his office mate, Ltjg Herbert Claiborne "Bertie" Pell, the son of Rhode Island Senator Claiborne Pell, Steverson was sent on a familiarization tour of Coast Guard, Navy and Air Force bases. The bases visited were Base Kodiak, Base Adak Island, and Attu Island, in the Aleutian Islands.[3]
Steverson was the Duty Officer on September 4, 1971 when an emergency call was received that an Alaska Airlines Boeing 727 airline passenger plane was overdue at Juneau airport. This was a Saturday and the weather was foggy with drizzling rain. Visibility was less than one-quarter mile. The 727 was en route to Seattle, Washington from Anchorage, Alaska with a scheduled stop in Juneau. There were 109 people on board and there were no survivors. Steverson received the initial alert message and began the coordination of the search and rescue effort. In a matter of hours the wreckage from the plane, with no survivors, was located on the side of a mountain about five miles from the airport. For several weeks the body parts were collected and reassembled in a staging area in the National Guard Armory only a few blocks from the Search and Rescue Center where Steverson first received the distress broadcast.[4]. Later a full investigation with the National Transportation Safety Board determined that the cause of the accident was equipment failure.[5]
Another noteworthy item is Steverson's involvement as an Operations Officer during the seizure of two Russian fishing vessels, the Kolevan and the Lamut for violating an international agreement prohibiting foreign vessels from fishing in United States territorial waters. The initial attempts at seizing the Russian vessels almost precipitated an international incident when the Russian vessels refused to proceed to a U. S. port, and instead sailed toward the Kamchatka Peninsula. Russian MIG fighter planes were scrambled, as well as American fighter planes from Elmendorf Air Force Base before the Russian vessels changed course and steamed back
Labels: Cadet Webster Smith.
posted by ichbinalj at 8:51 PM
32 Comments:
I encourage everyone in the Coast Guard to read what Criminal Appeals Court Judge Tucher has to say about the way Coast Guard conducted itself in the United States v Webster Smith trial and then ask yourself if you want your Coast Guard to go unchecked and unchallenged. Then take a look at the names and pay grades of the Civilians in Coast Guard Civil Rights who have left over the past several months and ask yourself "coincidence or a reason for alarm."
(Thomas Jackson)
The Supreme Court will consider the applicability of the 6th Amendment guarantees of confrontation and cross-examination is a criminal case on 22 April 2008. In the case of GILES v CALIFORNIA, the Court will consider what happens when the accuser in a criminal case is not available at trial. This has emerged as a major test of how the state and federal judges are to enforce the 6th Amendment confrontation clause. The California Supreme Court ruled that allowing into evidence heresay evidence from a declaration of a dead witness in a murder trial did not violate the accused’s right to confront his accusers.
The confrontation clause is designed to foster a search for the TRUTH. It guarantees a defendant the right to cross-examine his accusers. It helps a jury determine the TRUTH from mere allegations.
Attorney Joe di Genova, former US attorney in Washington DC says that this hold monumental implications for the Bill of Rights, the first ten Amendments to the Constitution.
There has been more fallout from the Webster Smith Case.
The albatros still clings to the neck of the Coast Guard and the Coast Guard Academy.
In a move that caught the U.S. Coast Guard by surprise, the DAY reported on 30 April 2008 that the House of Representatives passed a bill that would require congressional nomination for admission to the Coast Guard Academy.
Unlike the nation's other military service academies, which admit students by nomination, the Coast Guard Academy has traditionally admitted students on the basis of academic merit, using the SAT (Scholastic Aptitude Test) like civilian colleges and universities.
A provision in the 2008 Coast Guard Authorization Act, a bill that authorizes appropriations for the service for fiscal year 2008 as well as policy changes, requires applicants to the academy to obtain a nomination from an official source, such as a member of Congress or an authority from a U.S. territory.
U.S. Rep. Elijah E. Cummings, D-Md., chairman of the House Subcommittee on Coast Guard and Maritime Transportation, proposed bringing the application process in line with the other academies as a way to diversify the cadet corps.
The academy would have to allocate the current number of cadet positions to each state, proportional to the representation in Congress from that state, and a set number of positions to residents of the District of Columbia and U.S. territories.
Academy officials can then offer appointments to students who meet these criteria and the admission requirements. Some students may be appointed to the academy without competing in this way, including children of Congressional Medal of Honor recipients and children of service members who died while on active duty.
In his floor statement, Cummings said the change,“in conjunction with expanded minority recruiting efforts, will draw students from all of our nation's communities to the academy- beginning the process that the commandant himself has said is needed to expand minorities at all ranks of the more than 6,000-member officer corps from the current number of 827.”
More Bad News For the Coast Guard:
Robert Little of the Baltimore Sun reported:
Washington — Members of Congress called Tuesday for the U.S. Coast Guard's administrative court system to be removed from the agency's control and placed within an independent arm of government.
They say recent claims of bias and mismanagement have raised doubts within the maritime industry about whether the system is fair to the civilian defendants whose cases it handles.
U.S. Rep. Elijah Cummings, D-Md., and chairman of the House's Coast Guard subcommittee, said he will submit legislation to strip the administrative law system from the Coast Guard, with hopes of having the change implemented by next year. He made the proposal after hearing testimony from two former judges, a maritime attorney and a law professor who said they found evidence of bias or improper management within the current system.
Peter Stimson said : UNOFFICIAL COAST GUARD BLOG readers have been following the most recent Coast Guard authorization bill which strips away the administrative law judge system from the Coast Guard.
As a parent of a current cadet, I have long voiced the need for a congressional appointment process as a way of increasing the Academy's standing with the other military schools in the fight for national resources and servicewide respect. For too long, USCGA has been viewed as a small elite New England college that draws most of its students from a narrow geographic area and interest. I salute Representative Cumming for raising the issue and hope that this will finally bring the Academy the resources and cadets needed to meet the challenges of the 21th century.
Jack Sinks
Marietta, Georgia
As an Academy Admissions Partner and CG Auxiliarist, I wonder how all 535 members of the House & Senate are going to be given a slot considering the Academy only admits about 300 freshmen a year. Perhaps a slot every other year? Our freshmen class is as diverse as the qualified pool will permit. I agree that we would like more diversity but it may not be available.
R. Birnbaum
Stamford, CT
Why break something that has worked well for so long? Rep. Cummings does not want diversity, he wants control. The process of getting a political appointment is full of corruption, favoritism, and parental influence. As a poor kid from nowhereville, middle America I didn't have a chance getting my Congressman to appoint me, but I was able to compete on my own merits. The other academies should follow CGA policy and eliminate their political appointment requirements.
Richard Bruce
St. Petersburg, FL
The politics behind Congressional appointments has absolutely nothing to do with diversity and everything to do with favoritism, cronyism and $$$. The CGA is the only academy that has it right...admit cadets on the basis of merit, performance and qualifications irrespective of race, color, creed, etc. Diversity (and the associated affirmative action issue) is a double edged sword. In the end, you do not lower your standards to achieve some artificial quota to satisfy some political or special interest group. Equally interesting how this was submitted and passed by the House with no discussion involving the Coast Guard....
Ed Kunigon
Mukilteo, WA
I truly believe the status quo is the way to keep it. Acceptance through merit is honorable and encourages students to succeed to achieve an appointment to USCGA, not because their parents or they know someone or have a political connection. I think education in general has gone way to far away from rewarding a student for working hard and reaching for a high goal. I am disappointed in Rep Cummunings, but not at all surprised.
N. Tongl
Gahanna, OH
Some very qualified individuals will no longer be admitted to the Academy due to the fact they didn't have the right "connections". Doesn't congress have bigger things to do?
rpl
niantic
Humpty Dumpty sat on a wall; Humpty Dumpty had a great fall; but all the king's horses, and all the king's men couldn't put Humpty Dumpty back together again.
Before the Webster Smith case and Doug Wisniewski, CGA was safe and sound behind the wall. In obscurity, there was security. But then the wall came tumbling down.
Will all the king’s horses and all the king’s men be able to put Humpty back together again?
Over time this will work to lessen the virulent racism that is rampant in the senior officer corp. Presently disproportionate numbers of cadets are being admitted from certain regions, like the Deep South. If a proportionate number of cadets are admitted from across the country, it will tend to dilute the Regional biases that are now prevalent in the officer corp.
As a recent CGA graduate I disagree with this Bill. Some people believe it will increase our standing and national resources, but our process of accepting applicants through a nationwide competition is much more difficult. The USCGA is the toughest Academy to earn an appointment with. Over 5,000 applicants a year and ~300 accepted applicants. We don't care who you know at the upper congressional levels because we want people who are committed to our service, regardless of what other branches or academies think. Even with our current process we still manage a high level of diversity from across the nation. If its not broken don't try to fix it.
Leo Danaher
Alameda, CA
ichbinalj writes,
"For too long, USCGA has been viewed as a small elite New England college that draws most of its students from a narrow geographic area and interest."
There is history for this. Before the Civil War the Revenue Cutter Service (RCS) officer corps was fairly divided along the demographics of the era. About 1/3 southern, 2/3 from the northeast (including foreign born).
Following the war the RCS became near exclusively Northeastern (based on the States considered Northern in 1865).
The RCS School of Instruction did not enroll its first southern born and raised men until some twenty years after the war. This means an entire generation was lost to the service. This may have been because of the lingering effects of the war. Even the RCS regulations used the terms "rebels and spys" in the same context.
There can be no pretending that minorities would be enrolled. It was not in the cultural cards of the era. The SOI did enroll foreign born men. One was born in Bangkok and another in "South America."
The Coast Guard has know for twenty years there was a problem. It even commissioned a study in 1987 by Morgan State University on the accession and retention of minority officers. There was an in-house study done at the CGA in 1992 about the "culture and climate" there.
The problems are many and trying to fix them with unqualified candidates in the past has only created a less then enthusiastic climate.
I am not sure the congressional appointment scheme will work. There are too few entry slots for the possible number seeking a place. The whole process may become embroiled in congressional meddling and this is not what the CGA needs now or in the future.
Attorneys for former Coast Guard Academy cadet Webster Smith have filed a brief and a petition for review and appeal of his court-martial with the Court of Appeals for the Armed Forces. (Aug 2008). This is the last level of appeal before the U S Supreme Court.
Webster Smith said:
While CAAF is deciding whether or not to address the constitutional issues in my case, I remain faithful that they will hear the case and deliberate on it, objectively. I have seen God move mountains, in my life. I have prayed for many things but nothing moreso than vindication. Not because I want to win something but because I want to be something. I am a couple of things right now: a father, a husband, and the resident hyper-active geek at a Houston Law Firm. I know that I don’t write about any of this much but that doesn’t mean that it isn’t on my mind–nearly every second of every day.
Why does this blog post neglect to point out that while one judge of the CG appellate court found fault, 2 did not. I don't see a recitation of the MAJORITY opinion. I don't see the title being "Appeals Court Funds Against Webster Smith." A MINORITY opinion is just that, a minority. The controlling law is that of the majority of the court. It amazes how when someone has a court case go against what they believe, everyone else is wrong. If the CAAF takes the case and rules for him, then one can factually say "finds in favor."
Since this is subject to approval I don't expect it will ever be posted.
Dear Anonymous,
Thank you for your comment. You are correct. A Minority Opinion is not the controling opinion. It is not the law of the case.
However, some Landmark Supreme Court Decisions were once the Minority Opinion. When people come to their senses they sometimes recognize the wisdom and the correctness of the Minority Opinion. I will not bore you with a list of such cases; however, you would do well to study Plessy v Furgeson, and Brown v Bd of Education, The Dred Scott Decision, and other landmark civil rights cases.
The Appeals Court did not FUND the case against Webster Smith. It found against him. I am sure that was just a typographical error on your part. I get your point.
Since I agree with the reasoning of the Minority Opinion and believe it to be the more clear, cogent, and convincing Opinion, I see no reason to waste my time reciting the strained, biased, and contorted illogic of the Majority Opinion. Chief Judge Lane I McClleland was determined to bring one home for the Ole Girls' Network, no matter how rediculous the decision read. It will forever stand as one more piece of evidence to history and to the majority of reasonable people as to just how institutionally biased the Coast Guard Military Justice apparatus really is.
I have no serious problem with her abusing her conscience and signing off on a decision that is factually unconscionable, because we have sufficient appeals built into the Legal System. Ours is a Government of "checks and balances". I feel sure that the CAAF will recognize which is the better reasoned decision and reverse Judge Lane McClelland.
I do not believe that everyone else is wrong, only Lane McClelland and the one other judge she was able to adjure, beg, or browbeat to go along with her. If there had been an En Banc Hearing, I feel fairly certain that the Majority Opinion would have been reversed. But, again, there comes the institutional racism again to the rescue. It is built into the Coast Guard System. Once the Organization has locked ranks, they would rather be consistent and maintain comity with comrades than give a Black cadet a fair dcision on apeal and the benefit of the doubt, if that is what it would have taken.
Did you know that the ancient Hebrews under King David and King Solomon would rather free one thousand guilty men than convict one innocent man? That was when we had a respect for the Law and the integrity to match it.
Today, the Law is a tool to control certain radical elements. Peoples' desires to be in charge have outdistanced their morals and their integrity.
If there is a God in Heaven who has appointed a day to judge the living and the dead, I believe that He too believes the Minority Opinion is the only one with the moral standing to call itself an opinion of a Court of Appeals.
Thank you again for your comment.
ichbinalj
The congressman who worked hand in hand with the Coast Guard and almost pressured the Coast Guard Academy to court-martial a cadet just to send a message to cadets at all service academies about sexually assaulting female cadets, Christopher Shays, is in trouble.
Chris Shays has a Coast Guard admiral in Washington DC ready to testify before his Committee the day Webster Smith was court-martialed.
Locked in a tough re-election campaign in a district that overwhelmingly supports Barack Obama, Connecticut Rep. Christopher Shays has joined some fellow Republicans in publicly voicing frustration with John McCain's presidential campaign.
Shays told The Associated Press on Wednesday that the Republican nominee's campaign has gone too negative against Obama, and has muted his message of being an independent thinker with the best ideas and experience needed to solve the nation's problems.
With the tone of the campaign and Obama's lead in the polls, McCain will have a difficult time winning the presidency, Shays said, although he believes it's still possible.
Indeed, many minority opinions have become the majority and thus the controlling law in a case. You correctly mention several of them that make history and also prove up the notion that we are indeed a nation of laws- not a perfect one, but given the alternative, (anarchy, totalitarianism) I will stick with the system we have. I have read the cases you note and many, many more and I while I do know that injustices occur, I still cannot condemn the system based on what I think the result should have been -- as you seem to like to do. I would rather look to the facts and the law. And do my best to make the system work better.
Your shot at Judge McClelland is unfair and uncalled for. Stick to the facts and the law and leave the personal attacks home! The "ole girls network"??? You have got to be kidding. A bit sexist there, huh? Again, because you disagree you resort to the refuge of the uninformed- personal attacks. To suggest she influenced and "browbeat" - to use your word- Judge Lodge shows your lack of knowledge of both Judge McClelland and Judge Lodge.
This is a contentious case, with contentious facts that was decided in a Court of Law and despite your wish, not in the court of public opinion. Oh, and by the way, in case you didn't know, unlike civilian appeals courts the military courts of appeal can review the facts and not just the law to see if an injustice was done (one of the several distinctions that in some ways can make the military justice system somewhat better then its civil counterparts!). So, 2 of 3 judges, along with a jury agree with the facts as presented in court. The appellate process will run its course and determine if the law was correctly followed. If it wasn't, then by all means, let's reverse the decision and fix any injustices. Of course, if the Court of Appeals for the Armed Forces agrees with the CG Court, I am sure you will take issue with that as well.
Your bias is showing. Very clearly.
Dear Anonymous,
One person on the side of Truth is a majority.
Two of three judges and and the jury on the opposite side of Truth is not a majority. That is merely a delay in justice. Let justice be done though the Heavens fall.
If the CAAF agrees with the CG court, that only means that the Supreme Court was destined to grant certiori and be the final arbiter.
I will continue to take issue with anyone and anything that stands in the way of Truth.
Truth crushed to earth shall rise again.
ichbinalj
Chris Shays will not be holding hearings on sexual assaults at the military academies anymore. He will not be inviting Coast Guard Academy admirals to appear before his Committee.
The man who waved the Red Flag in front of Doug Wisniewski and Van Sice, and almost begged them to court-martial a cadet is GONE. That is GOOD. OH, what a relief it is.
I only regret that Cadet Webster Smith had to be sacrificed because of the hysteria subsided.
BRIDGEPORT, Conn. – U.S. Rep. Christopher Shays was a master at surviving close elections in a diverse southwestern Connecticut district that includes some of America's richest towns and deep pockets of poverty.
But he was no match for the long coattails of Barack Obama in Tuesday's election. The moderate Republican seeking his 11th term was bested by Democrat Jim Himes, 142,979 votes to 135,630 votes.
Shays, 63, was trounced in Bridgeport, Connecticut's largest city, as well as Stamford and Norwalk, in his failed 11th bid for re-election. When he leaves office in January, there will be no New England Republicans in the House of Representatives.
U.S. Rep. Elijah E. Cummings, D-Md., chairman of the House Subcommittee on Coast Guard and Maritime Transportation, is right. The Coast Guard should be more open to diversity and equal opportunity just as other areas of the military.
Its a shame what has happened to Cadet Webster Smith.The Appeals Judge has opened the locks of the Dam, and water is starting to stream down at a fast rate. Fairly soon that stream will turn into a river, which in turn will turn into an ocean current.
I am confident this case will go to the Supreme Court and that justice will prevail.
The Court of Appeals for the Armed Forces (CAAF) will hear the WEBSTER SMITH case. Oral Argument has been scheduled for September 2009!
I hope that justice prevails here but, in my heart of all hearts, they will probably not overturn the warped decisions of the three members CDR Gill, Capt Wisniewski, and Admiral Van Sice.
The last time I checked the Coast Guard is under the authority of the U.S. Department of Homeland Security during peacetime and under the direction of the U.S. Navy during wartime. Weren’t we under wartime during 2005 in Iraq? If this were the case, why wasn’t Cadet Smith offered due process and given a Navy trial? The answer is simple: The Navy would have thrown all charges out and instead would have court martialed Shelly Raudenbush, the real instigator of all of this. As I’ve said before, it takes two to tango, and Shelly was a very good dancer, strip dancer that is. Isn’t sodomy between two individuals? If sodomy was found for Cadet Smith, why wasn’t it found for Shelly Raudenbush? Cadet Webster Smith was never convicted of rape, because all of this was consensual.
The answer is simple: she knew she was not a credible witness, and was knee deep in trouble, so she at the behest of the three men, CDR Gill, Capt Wisniewski, and Admiral Van Sice played the young white female victim role. Guess what? Shelly won an Oscar for her role, and the rest is history.
In the early 20 ‘s and 30’s young Black men were routinely lynched when observed even looking at a white women much less committing sodomy on her. CDR Gill, Capt Wisniewski, and Admiral Van Sice thought that by showing the world a court martial of a Black man on the basis of a white female cadet who was perhaps trying to cover her own butt inasmuch as allowing a cadet to touch it in the spirit of youth, hormones, and perhaps some immaturity, would be a lifetime achievement award. They would go to the White House and receive a Congressional medal of honor for this accomplishment.
Shelly Raudenbush would be a national hero, having her own parade up Fifth Avenue in New York with CDR Gill, Capt Wisniewski, and Admiral Van Sice on the top of their limo waving at the crowd in glee.
I believe that she single handedly brought the demise to a young Black man’s promising career in order to save her hide, which I think that the prosecutorial team wrongly recognized that her sodomy on Cadet Smith was less of a court martial than the sodomy performed on her at the same time. So, which sodomy would legally stick with an all white jury? Sodomy charge on a Black man, or sodomy charge on a white young “innocent looking” female? The answer is obvious. Based on 2007 census data, when you have more whites living in New London, (86.8%) than in the entire state of Connecticut (84.5%), then what we have (potentially) is a good old boy network in New London. I am sure 99% of them are outstanding, honest, hard working Americans, but the 1% consisted of good old boys CDR Gill, Capt Wisniewski, and Admiral Van Sice making their indelible stamp on their careers and the career of a young Black aspiring Coast Guard Academy Cadet Webster Smith.
Back in the Jim Crow days, all military academies were filled with young testosterone laden cadets performing crazy acts to their female counterparts. It probably happens more than the military cares to admit. So why turn the other cheek, performing a wink and a nod to decades of lewdness among male and female cadets, and then all of a sudden stop the time machine at the year 2005? Answer: The time was right. The circumstances were right, and this was personal. IT WAS A BLACK MAN. The boogey man did it. CDR Gill, Capt Wisniewski, and Admiral Van Sice were slighted, stunned and embarrassed that this could occur on their watch (when it probably occurred in previous CGA academy classes’ dozens of times among young white male and female cadets).
The question now begs: was it worth it? CDR Gill, Capt Wisniewski, and Admiral Van Sice: you had your fill, you sent a Black cadet up the river, and a white female cadet who I believe also performed "sodomy" got off Scott free with no court martial. I hope the answer is a resounding NO!
All three of them will forever be connected to Webster Smith in the worst way: they were the trial, judge, and jury who deprived Cadet Smith of his civil rights. I can only hope that in the absence of the Appellate Judges doing the right thing and reversing the conviction of Cadet Smith, that upon leaving office, President Obama grants Cadet Smith a Presidential pardon.
If such a day occurs, I will go to the store and buy a $200 bottle of vintage Scotch Johnnie
Walker blue label, and celebrate a toast on behalf of my fellow American, a United States Patriot, CGA Cadet Webster Smith.
Dear Energioso,
Thank you for your comments. You make your points with the subtlety of a speeding freight train.
You are right on target on one point. The Three Blind Mice in this sorry saga were Gill, Wisnewski, and Van Sice. They pretended total blindness to any possible fallout from their irresponsible behavior. It is too bad Justice was not as blind.
The real architect of the Webster Smith travesty was CDR Sean Gill. CDR Gill, the Academy Staff Legal Advisor, had been investigating Cadet Webster Smith's personal social life since 2005.
The Article 32 Investigating Officer, Commander Steven Andersen, found that there was not sufficient evidence to charge Cadet Smith with rape, but the convening authority, Admiral Van Sice ignored that advice and followed the advice of his own Staff Attorney advisor, CDR Gill, who recommended that he charge Cadet Smith with rape anyway. The Article 32 Officer even recommended that Admiral Van Sice dispose of the charges at an Article 15, Captain's Mast, a form of non-judicial punishment.
CDR Gill's advice was rather bizarre because the Article 32 Officer was also a Military Judge as a collateral duty. He was emminently qualified to give sound advice on this issue. He made an independent and fair assessment. Even CDR Gill agreed that CDR Andersen's advice was sound and fair.
CDR Gill offered his non-trial experience against CDR Andersen's trial experience and persuaded Van Sice to go ahead with a general court-martial. He felt that there was the barest scintilla of evidence of rape, and that there was a very thin chance that they could convince a jury of fellow officers to vote for a conviction. He was flat-out wrong to do that. Yet, he has remained in the shadows all this time. Like most people who give bad advice, he does not want to receive credit for it.
CDR Gill was also the person responsible for ensuring that none of the females involved received any disciplinary action. It was, no doubt, his advice to give immunity from prosecution to any female who would standup and give testimony against Webster Smith. As charge after charge was didmissed prior to trial based on defense motions, it was CDR Gill who kept roundingup new witnesses and new allegations after the court-martial had begun. Sixteen or more charges and specifications were dismissed during preliminary motions sessions. CDR Gill was able to roundup Shelly Raudenbush at the last minute. It was her coached testimony that gave CDR Gill and Wisniewski and Van Sice the conviction that they sought.
CDR Gill argued strongly against non-judicial punishment and any lesser criminal forum, such as a Summary or Special Court-martial, because he had obtained the solemn guarantee from several female cadets that they would testify at a court-martial. He was only able to get their cooperation by promising them that Webster Smith would be sent away for a long time. He promised long jail time, and he promised to get Webster Smith out of the cadet barracks immediately. He was the one who persuade Doug Wisniewski to snatch Webster Smith out of the barracks at midnight in handcuffs and send him to the Navy barracks at Groton. Then he was not allowed to attend classes where he would come into contact with any of the potential female witnesses. That would have unraveled Cdr Gill's plans for a court-martial. Instead, Webster Smith was forced to work at hard labor at the boat docks as they continued to try to build a case against him.
CDR Gill tainted his career and his future options in the Coast Guard by his irresponsible acts. They border on Jim Crow manifestations against officers of color. His desire to convict CGA Cadet Webster Smith was shameful and reflects badly on his judgment, temperament, and experience at the time.
In essence, CDR Gill rounded up the usual suspects, and all female cadets who had relations with Cadet Smith were turned into victims in order to save their hides. One man took the fall for many. Yet, history tells us that there should be equality in the military. Where was the equality when a Black man was convicted of sodomy and a female cadet was not?
How can one person be accused of this, yet the female white cadet plays the victim, gets coached, and makes sure her career and the careers of her fellow white female cadets remain intact? Today, I am sure some laugh and giggle at the mention of Cadet Smith. After all he was a ladies’ man. Others are probably sorry they did not speak their minds and defend Cadet Smith. These were impressionable young ladies whom CDR Gill had his way with. It wasn’t even a contest.
If it takes two to tango, why did they only go after the lead man? Why protect the females? Answer: because their Femi Nazi mothers would have had a fit trying to explain this to their neighbors in their rich white neighborhoods and country clubs.
I suspect that many of the female cadets came from families with illustrious military careers. These men were great Americans. But, can you imagine the chatter:“My daughter got convicted of sodomy for sleeping with a Black man?” NO. “Let’s convict the boogey man”. This will be more socially acceptable and it will STICK with an all white jury. And it did. I only hope that justice will prevail and TRUTH will eventually speak to power. That day cannot come soon enough.
Anonymous, I agree in part with your observations. The young junior males are prime targets for any female seeking validation these days. Personally, I respect a woman’s right to join the ranks of officer. I am not a fan of this policy, but I respect it. Studies were done back in 1977 MAX WAC(Women’s Army Corps) and found that field exercises held the previous year to test the effectiveness of sexually integrated combat-support units, had been inadequate. Many of the troops, particularly the women, had not thought it through to the realization that had it been a war, both male and female soldiers could have been killed or wounded. . (It) was known that sexual intercourse was occurring, but not more than occurs in garrison (War and American Women: Heroism, Deeds, and Controversy. Contributors: William B. Breuer - author. Publisher: Praeger. Place of Publication: Westport, CT. Publication Year: 1997. Page Number: 118.).
While this may have happened decades ago, in the Coast Guard Academy and aboard the Cutters, I believe there may be a few female gold diggers out there who would have relations with a CO (male or female) in a heartbeat if the opportunity presented itself. The majority of woman in the Coast Guard are good, decent young women who love their country and their countrymen. In Cadet Webster Smith’s case, the female cadets who may have had relations with Cadet Smith are not evil young women. They are not unblemished either. They found religion and became Nuns thanks in part to the coaching and leadership of CDR Gill in order to protect their cute careers. They were turned into innocent victims by the prosecutorial team. Each of them landed an Academy Award, an Oscar for their performance,even if their performance was exactly the same charge that CGA Cadet Webster Smith was convicted on. I salute them and only wish them the best. I also award a purple heart, and Congressional Gold Medal to a Black Cadet who took the mortal wound for all of them, CGA Cadet Webster Smith, a true American Hero.
The history books will eventually right the wrong as so often happens in cases of Black military injustices, and realize that CGA Cadet Webster Smith was the authentic fall guy for this fiasco. It took over 50 years for the Tuskegee Airmen to receive their just rewards with most them already dead. In 2006, the 109th Congress approved H.R. 1529 cosponsored by Rep. Eshoo to award the Congressional Gold Medal to the Tuskegee Airmen in recognition of their heroism in World War II. Previous recipients of the award include George Washington, the Wright Brothers, Thomas Edison, Jonas Salk, Jesse Owens, Rosa Parks, Nelson Mandela and Pope John Paul II.
Anonymous, while I agree that there may be more females lusting after junior members, I suspect that you are not that naïve to think that ALL females who lust after lesser ranked men wouldn’t be “sucking face” with a CO in a nano second? If they would go after a junior member then trust me, they would kneel before a CO and do the wild thing before you could even pronounce the now infamous legalese “s” word by which CGA Cadet Webster Smith was convicted on.
Anonymous, it’s all about power. Men have it, and women want it… badly. I just hope I will be alive to see the final tally the history books write on a true blue Patriot, CGA Cadet Webster Smith.
This entry was posted by cgreports.wordpress.com on June 11, 2009 at 6:26 pm and is filed under Uncategorized.
QUOTE: "We were notified today that Webster Smith, the first cadet to ever be courts-martialed at the U.S. Coast Guard Academy has had his site blocked by the U.S. Coast Guard. Smiths website “Friends of Webster” is not accessible inside the Coast Guard domain. We reviewed the site and couldn’t find anything in our cursory review that would warrant being blocked."
UNQUOTE
See-http://cgreport.wordpress.com/2009/06/11/webster-smith-former-u-s-coast-guard-academy-cadet-blocked-inside-coast-guard-domain/
NO LIE CAN LIVE FOREVER.
Tuesday, November 10, 2009
United States Court of Appeals for the Armed Forces
450 E Street, Northwest
Washington, D.C. 20442-0001
SCHEDULED HEARINGS
United States v. Webster M. Smith, No. 08-0719/CG
(Appellee) (Appellant)
Counsel for Appellant: Ronald C. Machen, Esq.
Counsel for Appellee: LT Emily P. Reuter, USCG
Case Summary: GCM conviction of going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. Granted issue questions whether the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of [SR], the government’s only witness, on three of the five charges.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
Partner with TinkerBellPersonalChecks.com and earn money refering customers to our site.
http://www.tinkerbellpersonalchecks.com/bloggers/
Five Great Reasons to Partner with TinkerBellPersonalChecks.com:
1. Unlimited earning potential - earn 10% commission on every order you generate!
2. Promote high quality financial products with a spiritual theme your site visitors are sure to enjoy.
3. 30 day cookie duration.
4. Monthly payout on commissions totaling $100.00 or more
5. Dedicated supportavailable to help you succeed.
There are over 130 personal check designs, related accessories, a full line of business checks and business products. Designs feature some of the most recognized licenses in the world including: NBA, Disney, Harley-Davidson, and Warner Bros.
A variety of general and category specific banners, rotating banners and text links are available. If you need a unique banner for your site, we are happy to help. Send us an email with details and we'll get right on it!
When you refer customers to our site via your special links, they automatically carry with them a special tracking code that contains your unique member ID. When they make a purchase you are credited with the sale and your commissions are updated. You can view your account activity at any time via a password protected area on the Internet.
Getting Started is Easy…Join Today!
Thanks
Shiela
http://www.tinkerbellpersonalchecks.com/bloggers/
Ronald C. Machen Confirmed as United States Attorney for the District of Columbia
February 12, 2010
On Thursday, February 11, 2010, the United States Senate confirmed WilmerHale Partner Ronald C. Machen as the new United States Attorney for the District of Columbia. Ron, a member of WilmerHale’s Investigations and Criminal Litigation Practice Group, was nominated for the position in December by President Obama.
Ron first joined WilmerHale in 1993 and later served as an Assistant United States Attorney from 1997 to 2001, after which he rejoined the firm. Since 2001, Ron has represented individuals and corporate clients in the areas of white-collar criminal defense, regulatory enforcement, corporate compliance and complex civil litigation. He has advised and defended numerous Fortune 500 companies in high profile government investigations of alleged securities law violations, accounting and health care fraud inquiries and government procurement fraud matters. He has also litigated commercial disputes in state and federal courts concerning misappropriation of trade secrets, unfair competition, breach of contract and civil rights law violations and has frequently represented corporations in the various civil litigation that often follows regulatory investigations and enforcement actions.
“While he will be missed, we are proud of Ron and know he will serve the country well in his new role,” said WilmerHale’s Co-Managing Partner William J. Perlstein. "We wish him continued success in his new position.”
Post a Comment
<< Home