Remains Of The Day.

http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021

SUPREME COURT WON'T HEAR APPEAL IN CONVICTION OF FORMER CGA CADET.

Publication: The Day. 12/28/2010.
By Lee Howard.

The U.S. Supreme Court has refused to hear an appeal of the conviction of Webster Smith, the only Coast Guard Academy cadet ever court-martialed.



Smith's conviction in 2006 on extortion, sodomy and indecent-assault charges - while he was acquitted on a rape count - had previously been upheld by the Coast Guard Court of Criminal Appeals and, in March, by the U.S. Court of Appeals for the Armed Forces.



Smith had sought a Supreme Court review based largely on the argument that he had not been able to question the credibility of one of his accusers, known only as Cadet SR.



The right to confront one's accusers is guaranteed under the Sixth Amendment to the U.S. Constitution. But the Armed Forces appeals court, in a 3-2 vote, ruled that judges have the discretion to bar testimony so long as the issue involved is not deemed necessary to the case.



"Further cross-examination of Cadet SR was not 'constitutionally required,' " according to the appeals court decision. "It was neither material nor vital."



Smith's attorneys wanted a chance to question the female cadet because, according to a legal brief, she had lied about the consensual nature of a previous sexual encounter with an enlisted man, contrary to Coast Guard rules and possibly jeopardizing her military career. The female cadet claimed Smith used knowledge of her previous dalliance to extort sexual favors from her.



"The defense maintained that the two cadets' sexual encounter was consensual and that SR was fabricating her accusations because the encounter occurred in Chase Hall, the Academy dormitory, where sexual activity is prohibited by cadet regulations," according to a brief in the case.



The court's minority, including Chief Judge C.J. Effron, agreed that Smith's attorneys should have been allowed to question the female cadet. In a dissenting opinion, they said Smith's "allegation that SR had previously lied about a sexual encounter" was relevant to the case.



Last month the Supreme Court rejected Smith's petition seeking a hearing on the case, effectively making the military appeals court's decision final.



The case had racial overtones because Smith, who is black, claimed his treatment was harsher than previously meted out to whites at the Coast Guard Academy accused of sexual impropriety. The Department of Homeland Security investigated the allegations in 2007 and denied the complaint.



"Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment," according to the Law And Order blog found at http://lawandorderroybean.blogspot.com.



Efforts to speak with Smith and attorneys on both sides of the case were unsuccessful Monday. Smith, a former Coast Guard football star now living in Houston with his wife and daughter, spent nearly five months in a military prison after receiving a six-month sentence.



Coast Guard spokeswoman Lisa Novak said Monday that Smith's case is currently in the process of residual clemency, which will allow him to submit additional information before a review of his sentence by Secretary of Homeland Security Janet Napolitano.



Novak said Smith also has the right to seek a new trial before the Coast Guard appeals court, if he submits newly discovered evidence, and could also have his record cleared with a presidential pardon. According to Texas law, he will have to register as a sex offender, the National Law Journal reported.



The Smith case resulted in changes at the Coast Guard Academy, which formed a task force after the trial to look into the atmosphere on campus. The report cited a strong association between alcohol abuse and sexual assault as well as a mistrust of the Coast Guard Academy's leadership among minorities.



A subsequent study by the Government Accountability Office, issued in 2008 after a series of revelations about sexual misconduct at U.S. military academies, said the Coast Guard should be required to report on efforts to stem the tide of sexual assault and harassment cases.



The GAO noted the Coast Guard Academy was the only U.S. military school not required to report to Congress on sexual-misconduct cases.



l.howard@theday.com

The Wounded Dragon That Refuses To Die.

http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021



Like a wounded dragon that refuses to die, Webster Smith is gasping for air after the latest wound from the U. S. Supreme Court in his heroic struggle for equal justice under the laws of the United States of America. But, dragons die hard.

A final judgement fom the Supreme Court has been entered in the Case of Cadet Webster Smith. He was a first Class Cadet, a graduating senior in the Academy Class of 2006. He had a brilliant future ahead of him, but his career was marked for death. He was snatched from his bed at midnight in Chase Hall, schackled with handcuffs, and lead down a chamber of horrors that continues to reverberate until this day. Tomorrow and tomorrow continues to creep in this petty pace from day to day until the last sylable of recorded time.

He made a full confession. He offered a contrite apology. He fought a good fight; he kept the faith; and, he finished the course. But, there is no crown of justification laid up for him; not yet.

Perhaps in the World Tomorrow, the Righteous Judge will see the merits of his case; or, in this world's court of public opinion the people will see what a horrendous injustice has been done to one of the best and the brightest that America has produced. The last chapter has yet to be written in this sorry saga.

Hard cases make bad law. In this case, the facts were not so hard to distinguish as the defendant was of the wrong persuasion.

Webster Smith will never again have be asked what is the mission of the United States Coast Guard Academy or 'how is the cow?'. No need to explain that she walks; she talks; she's full of chalk; the lactile fluid extracted from the female of the bovine species is highly prolific to the Nth degree. He will never again have to concern himself with swab indoc. He will never be a company officer adviser, or the Commandant of Cadets. Never again will he darken the doors of Chase Hall.

A regrettable and avoidable chapter in Coast Guard history may be over.

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

No. 10-18
Title: Webster M. Smith, Petitioner
v.
United States

Docketed: June 30, 2010
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (08-0719)
Decision Date: March 29, 2010

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 28 2010 Petition for a writ of certiorari filed. (Response due July 30, 2010)

Jul 30 2010 Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jul 30 2010 Brief amicus curiae of United States Army Defense Appellate Division filed.

Oct 28 2010 Brief of respondent United States in opposition filed.
Nov 5 2010 Reply of petitioner Webster M. Smith filed. TBP
Nov 8 2010 DISTRIBUTED for Conference of November 23, 2010.
Nov 29 2010 Petition DENIED.

The only cadet court-martialed in the 130-year history of the Coast Guard Academy has run out of options to appeal his conviction.

Cadet Webster Smith already served time behind bars, but continued to fight all the way to the U.S. Supreme Court.

After more than four years, the Smith case is over. The former Coast Guard cadet hit a dead end when the U.S. Supreme Court has decided not to hear his final appeal.

Smith was acquitted of rape charges, but served five months in a military prison after being convicted of sodomy, extortion and other charges.

He was also kicked out of the Coast Guard Academy.

Smith has claimed in multiple appeals that his constitutional rights were violated at his trial.

He said he wasn't allowed to ask one of the female cadets who accused him of rape about her past, saying he wanted to show that the woman known as Cadet S.R., had a motive to lie about what happened with Smith.

He claimed their sexual encounter was consensual.

Since the nation's high court has declined to hear Smith's case, the final judgment comes from the U.S. Court of Appeals for the armed forces.

In March the court ruled that his conviction should stand, saying "further cross-examination of Cadet S.R. was not 'constitutionally required.'"

Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment.

Congress is deadlocked; the President is weakened; and, the Supreme Court does not appear to be in a mood to settle conflicts of law between the Circuit Courts. Since nature abhors a vacuum, this may be a good time to legislate from the bench.

This case implicates a deep circuit conflict regarding
the standard of review that applies when a trial
judge’s restriction on the cross-examination of a prosecution
witness is challenged on appeal as a violation of
the Confrontation Clause. The Court of Appeals for the
Armed Forces (CAAF) held that the standard of
review is abuse of discretion rather than de novo. Applying
the former standard, the court rejected Webster Smith’s
Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided
Over What Standard Of Review Applies To
Confrontation Clause Claims Like Webster Smith’s.
The CAAF employed abuse-of-discretion review in resolving
Smith’s Sixth Amendment challenge to the
military judge’s restriction on the defense’s crossexamination
of Shelly. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo,
reserving abuse-of-discretion review for nonconstitutional
challenges. For example, the Seventh
Circuit has stated that “[o]rdinarily, a district court’s
evidentiary rulings are reviewed for abuse of discretion.
However, when the restriction [on crossexamination]
implicates the criminal defendant’s Sixth
Amendment right to confront witnesses against him, ...
the standard of review becomes de novo.”
The First, Fifth, Eighth, and Tenth Circuits
have adopted the same approach.

Six other circuits, by contrast—the Second, Third,
Fourth, Sixth, Eleventh, and District of Columbia Circuits—
take the same approach that CAAF does, applying
abuse-of-discretion review even when a restriction
on the cross-examination of a prosecution witness is attacked
on constitutional grounds. The Sixth Circuit,
for example, stated in one case that “[defendant] argues
that his right to confrontation was violated when the
trial court ‘unfairly’ limited his cross-examination of [a]
government witness .… We review the district court’s
restriction on a defendant’s right to cross-examine witnesses
for abuse of discretion.”

In short, CAAF’s use of an abuse-of-discretion
standard in this case perpetuates a clear—and recognized—conflict in the circuits.

The Question Presented Was Recurring And
Important, And The Smith Case Was A Good Vehicle
For Deciding It. When will another perfectly tailored case such as this come along? Perhaps not in a thousand years will we see so appropriate a case for resolving this issue.
The circuit conflict at issue warranted resolution
by the Supreme Court. The constitutionality of restrictions
on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established;
there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one
standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".

Also, disuniformity created by the conflict directly
affects a fundamental individual right. Some defendants
in criminal cases enjoy less protection of the critical
right to confront their accusers because of the fortuity
of where their trials were held,or, as to cases decided
by CAAF, because they have chosen to wear the nation’s uniform.

The Webster Smith case presented a good vehicle to resolve the circuit
conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality
of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent
with the Sixth Amendment, Webster Smith would have prevailed.



Smith now lives in Austin, Texas, with his wife and daughter. He's required to register as a sex offender there for the rest of his life.

Justice truly was not served in this case. What is happening in America?
What happened to Freedom of Speech and Freedom of the Press? With the dumbing-down of the American educational system, most Americans now seem to know little and care less about their fundamental freedoms and civil liberties. Some believe that the police have a right to enter their homes without probable cause or a warrant. They do not believe that they have the right to "just say No".

In the Land of the Free and the Home of the Brave fundamental freedoms are being challenged as never before. Senators on Capitol Hill sound like a lynch mob calling for the head of the Wikileaks leader who published diplomatic cables on the internet. Many of the cables were little more than embarassing gossip. Yet, the administration that came into town riding the "transparency in government" horse are scrambling to keep its in-house chatter secret. We have not seen this much ado about release of tapes and documents since Richard Nixon and Alexander Butterfield let the cat out of the bag with the Watergate Tapes brew-ha-ha.