Hard Cases Make Bad Law; And, Hard-assed Senators Cannot Change Settled Law.

WASHINGTON (AP) — Sen. Claire McCaskill is holding up the nomination of Air Force Lt. Gen. Susan Helms, tapped to serve as vice commander of the U.S. Space Command, until the Missouri Democrat gets more information about Helms' decision to overturn a jury conviction in a sexual assault case.

"As the senator works to change the military justice system to better protect survivors of sexual assault and hold perpetrators accountable, she wants to ensure that cases in which commanders overturned jury verdicts against the advice of legal counsel are given the appropriate scrutiny," Drew Pusateri, a spokesman for the senator, said Thursday 25 April.

In February 2012, Helms rejected the recommendation of legal counsel and overturned the conviction of an Air Force captain who had been found guilty of aggravated sexual assault of a female lieutenant.
McCaskill's hold prevents the Senate from approving Helms' nomination.
The Helms' situation echoes another Air Force case that has outraged members of Congress.

Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany, overturned the conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy. Wilkerson had been found guilty last Nov. 2 of charges of abusive sexual contact, aggravated sexual assault and three instances of conduct unbecoming of an officer and a gentleman. The incident had involved a civilian employee.

Wilkerson was sentenced to a year in prison and dismissal from the service, but after a review of the case Franklin overturned the conviction.
Lawmakers demanded a fresh look at the military justice system. Earlier this month, Defense Secretary Chuck Hagel recommended that military commanders be largely stripped of their ability to reverse criminal convictions of service members.
McCaskill, a member of the Senate Armed Services Committee, has introduced legislation that would limit the authority of military commanders to overturn convictions.

One bill in Congress would remove control of military sexual assault cases from the pertinent chain of command. U.S. Rep. Rosa L. DeLauro, a New Haven Democrat, is one of 83 co-sponsors. DeLauro said it would establish “reforms I fear the military cannot make on its own.” It should have been done “years ago,” she said.

The bill would establish an office of civilian and military legal experts to investigate cases, create a reporting method, provide safety to victims, and keep a database from which convictions would be sent to the National Sex Offender Registry.

Another proposal would take the decision away from commanders on whether to prosecute any crimes punishable by sentences of one year or more, not just sexual assault cases. A military prosecutor would make these decisions under the bill spearheaded by U.S. Sen. Kirsten Gillibrand, (D-NY) and co-sponsored by a dozen other members of the Senate and House, including Democrat U.S. Sen. Richard Blumenthal. Supporters expressed hope that it would encourage reporting of sexual assaults because without the chain of command involved in prosecutorial decisions, fear of retribution may be diminished.

The bipartisan bill would also remove the authority from commanders of overturning or reducing convictions. In February, an Air Force commander overturned the conviction, prison sentence and military dismissal of an officer found guilty of sexually assaulting a civilian contractor.

In a Federal Court case in New Haven, plaintiffs are seeking data from the military and the U. S. Department of Veterans Affairs relating to sexual assaults. The hope is that information obtained can help determine what new laws and policies are needed, said Michael Wishnie, a law professor who supervises the Yale Law School Veterans Clinic. The clinic is representing plaintiffs who include the Service Women’s Action Network, the American Civil Liberties Union and the Connecticut ACLU.

The Military Rape Crisis Center, an advocacy organization, is urging state legislatures to ensure that their National Guard conduct codes allow for adequate prosecution of sexual assault and proper treatment of victims, said Jennifer Norris, a center victim advocate. So far, bills have been proposed in two states, Maine and Louisiana. Maine’s bill, a study, would assess such issues as mandatory separation from the Guard of convicted sex offenders, mandatory insurance coverage for abortion in cases of rape, and required sexual assault prevention courses for officers. In Louisiana, a definition of sexual harassment and assault would be put into its Military Justice Code for the first time.

Nancy Parrish, president of Protect Our Defenders, cited “a pervasive boys’ club mentality” in the military. She said studies show that “in units where sexual harassment is condoned, women are 40 percent more likely to be sexually assaulted or raped.”
 A report in April based on a 2011 Pentagon health survey found that more than one out of five female respondents said they experienced unwanted sexual contact by another service member; and nearly a third of military women with gender-related stress were sexually assaulted while in the military.

 There are roughly 4,500 cadets at West Point. Women have been accepted to the prestigious military academy since 1976 and make up about 15 percent of the cadet corps, while at the Coast Guard Academy in New London, CT women make up over 30 percent of the corps of cadets.

At the U.S. Coast Guard Academy in New London, many cadets are afraid they will be retaliated against if they report sexual offenses, said Panayiota Bertzikis, executive director of the Military Rape Crisis Center. The center runs confidential support groups for cadets who have been sexually assaulted. Bertzikis said about 40 women and 10 men attend the groups. The women were assaulted by cadets while most of the men experienced sexual trauma before enrolling at the academy.

Coast Guard Rear Admiral Frederick J. Kenney, testifying recently before a Senate subcommittee, said that the academy has “quite a robust training plan in place for the cadets” on the issue, including a Sexual Assault Response Coordinator and a student group trained to confidentially “accompany a victim to a Victim Advocate.” Academy Superintendent, Rear Admiral Sandra L. Stosz, declined an interview.

A Pentagon report released in early May found that the number of sexual assaults reported at military academies soared in recent years, from 25 in the 2008-09 academic year to 65 in 2010-11 and 80 in 2011-12. Reports of unwanted sexual advances also have risen throughout the military, from about 19,000 in 2011 to an estimated 26,000 in 2012, an increase of 37 percent, Reuters reports.
 Advocates note that men are also victims of sexual assaults.

A May Pentagon report shows more men assaulted than women, but a much smaller percentage based on their populations. Some 12,100 women were assaulted out of a total female military population of 200,000, while 13,900 males were assaulted out of 1.2 million military men.

President Barack Obama called a meeting with Defense Secretary Chuck Hagel and other military leaders to discuss sexual assaults after the scandals discrediting the military's efforts to stamp it out.

Hagel reacted with "frustration, anger, and disappointment over these troubling allegations and the breakdown in discipline and standards they imply," said a Pentagon statement.
President Obama has ordered Hagel to make sure anyone involved in the sexual assaults is held accountable.
New York Sen. Kirsten Gillibrand has said the military has had enough time. She plans to introduce a bill this week taking the handling of sexual assaults out of the chain of command and making military prosecutors responsible from the moment an allegation is lodged.
The problem has been around for decades but gained national attention after the Tailhook scandal in 1991, and again in 2003 when Air Force Academy cadets were accused of raping female cadets.

Coast Guard Museum To Tell The Full Story

Commandant Eager For New Museum to Tell Coast Guard Story

Adm. Robert J. Papp Jr.

U.S. Coast Guard

NEW LONDON, Conn. — Often, people have too narrow a view of what the Coast Guard does, Adm. Robert J. Papp Jr. said Thursday.
Some watch Coast Guardsmen featured on the television show "Coast Guard Alaska" and think the Coast Guard mainly rescues people by helicopter, Papp, the Coast Guard commandant, said. Others hear about operations in the Caribbean and they think the Coast Guard stops migrants from entering the country illegally.
"There are times where people even question the need to have a Coast Guard," he said in an interview. "There are times when they say, 'Why does the Coast Guard need to be doing aids to navigation? Why does the Coast Guard need to be doing this law enforcement thing?' And unless they understand the history and how we came together, they just have difficulty comprehending that."
To better tell the Coast Guard's story, Papp, as the head of the Coast Guard, has supported building a National Coast Guard Museum in New London and asked the Coast Guard Academy to create a mandatory course on the service's history.
He visited the class on Thursday. Today, he will take part in the announcement of the museum's site.
The museum will be a place to "wrap together" the multiple missions, Papp said, "in a comprehensive display and storyline that will help to educate and inform the public, and I think, hopefully generate even better support for the Coast Guard." He envisions cadets in the history course visiting the museum to see the artifacts they're learning about and Coast Guardsmen visiting to reflect on their service.
Richard Zuczek, the senior historian at the academy who created the course, said many people don't understand the history of the Coast Guard because it's confusing. Unlike the other services, the Coast Guard is an amalgamation of five formerly distinct federal services.
The museum and the course will help tremendously, he said, because people will be able to put the pieces together. The course is new this school year.
Jennifer Melendez, a freshman cadet from New Jersey, talked at length about the history of the Coast Guard's ice operations during Thursday's class. Before the course, she said, she knew the basics about some of the service's notable figures but little else.
These topics, she said, are not something high schools normally teach.
"Without understanding where we were as a service, we can't really understand where we're going or where we are," she said.
She was excited about the prospect of a museum, which will "open the eyes of the public to what the Coast Guard actually does as a service, and kind of bring us more in the forefront and put us up to par with the other services," she said.
The Coast Guard is the only military service that does not currently have a national museum. Papp said he wants to take Coast Guard artifacts out of storage.
Two years ago, his wife, Linda, found in shrink wrap in an attic at the academy the chairs that Ronald Reagan, Mikhail Gorbachev and George H.W. Bush had used during a summit in 1988 on Governors Island in New York, where there once was a Coast Guard base. Brass plaques on the chairs displayed the leaders' names.
"Those ought to be in a museum, and they will be," Papp said.
Now that the plans are moving forward, Papp said, he's anxious because he wants the museum to be a success. He said he still may be able to achieve his goal of participating in a groundbreaking ceremony before his post ends in 2014.
The National Coast Guard Museum Association still has to raise the rest of the money to build the museum, which is expected to cost $80 million to $100 million depending on some of the design choices.
"I love the Coast Guard and I want to see the Coast Guard's story told. And this is a means to do it," he said. "I think it's like any time you take on anything that's new and exciting and has potential obstacles along the way, you feel a little bit of anxiety and anxiousness, but that's just healthy."
(Jennifer McDermott, The Day, New London, Conn., April 5, 2013)

 Admiral Papp wants to build a National Coast Guard Museum to better tell the Coast Guard's story and to give a clearer picture of Coast Guard history. That is a worthy goal. One would hope they do a better job than American Historians who tell American history but manage to leave out the contributions of certain ethnic and minority groups; such as, African Americans and prominent Native Americans. America grudgingly has set aside the Month of February to allow for the recounting of some of the notable achievements of African Americans.
Surely such a museum would tell the story of all the "Firsts" in Coast Guard History; such as, the first female pilot, the first Black graduate, the first cadet to receive a court-martial, the first Black Captain, Admiral, Academy Brigade Commander, and other such notables.

Why Was Webster Smith Court-martialed?

Why was Cadet 1st Class Webster Smith investigated, charged, tried, and convicted? Why must this talented young man register as a sexual offender for the remainder of his life? Why did he not find any justice in the military justice system? How could his case go through the entire appeal's process and end up at the United States Supreme Court without being granted any relief? Why would Janet Napolitano, Secretary of Homeland Security refuse to grant clemency in a case that clearly cries out for justice?

 At this point in history when America had come far enough to elect a Black President why was this shining example of the best and the brightest of the African Americans of his generation denied the equal protection of the law? Why was he relegated to the second rail of military justice? On the second rail one receives "almost equal protection".  Like much else in the law, equal protection is a myth for America's citizens of color. The myth gives one the illusion of fairness.

Could the answer have anything to do with the nature of the criminal justice system or the definition of crime?  Crime is a legal concept, and the law creates the crimes it punishes. But, what creates the criminal law?  Behind the law, above it, and surrounding it is our society. Before the law made certain behavior a crime, some aspect of social reality transformed certain behavior into a crime.

Justice is blind in the abstract. It cannot see or act on its own. It cannot create its own morals, principles and rules. That depends on society. Behind every legal determination of "guilty" lies a more powerful and more basic social and societal judgement, a judgement that this type of behavior is not acceptable. This type of behavior deserves to be prohibited and punished. Our society has long chosen to prohibit and punish interracial sex.

After society makes a social judgement that certain behavior, acts, or conduct is wrong, the criminal justice system goes to work. It refines and transforms the list of prohibited acts and behavior. It interprets the list of acts, and does whatever is necessary to catch, convict and punish the lawbreakers.

Bias is inevitable. Crime and punishment are highly charged, emotional, and political subjects. There is no way to wring prejudice, attitude, or race out of the system.

GENERAL COURT-MARTIAL

UNITED STATES COAST GUARD

UNITED STATES

v.

WEBSTER M. SMITH, CADET, U.S. COAST GUARD

FILED UNDER SEAL[*]

MEMORANDUM ORDER AND OPINION FINDINGS OF FACT

During the summer training program at the start of their first class year, Cadet Smith and Cadet [SR] were both assigned to patrol boats that moored at Station Little Creek. Both lived in barracks rooms at the Station…she went on to state that on October 19^th….she agreed to pose for a picture with him in which both of them were nude, and later that night allowed him to perform cunnilingus on her then she performed fellatio on him.

___________________________________

…. the Government’s objection that this evidence is inadmissible in accordance with M.R.E. 413 [sic] is SUSTAINED.

EFFECTIVE DATE

This order was effective on 26 May 2006.

Done at Washington, DC,

/s/

Brian Judge

Captain, U.S. Coast Guard

Military Judge

The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people, and as Americans, on trial. Everything that we profess to stand for as Americans was on trial. Our sense of justice in America and particularly in the U.S. Military was on trial. This was no ordinary trial. Our humanity was on trial. Our system of justice was on trial. This case dissolved the deceptive façade and exposed certain moral deficiencies in our system of justice. This case alone puts the legitimacy of the entire military justice system at risk.

This was not a rape case. Many senior Coast Guard officers tried to portray it as such. Webster Smith was not and is not a rapist. The court-martial, with all of its faults, proved that this was not a rape case.

This was not a sexual assault case. Webster Smith did not sexually assault anyone. What he did was engage in an act of consensual love making with a friend. He was charged and tried; his partner was not. Why not? They both violated the Coast Guard Academy Cadet Regulations by engaging in sexual activities in Chase Hall, the cadet barracks.

An article published in the New London DAY newspaper on 20 February 2008 entitled “Service Academies faulted in GAO report,”  stated: “In the summer of 2006, former cadet Webster Smith became the first student court-martialed at the Coast Guard Academy. He was acquitted of rape but convicted of extortion, sodomy and indecent assault.”
One might conclude that he was convicted of three of four charges. That is not correct. The truth is that of the 10 charges referred to the general court martial, Webster Smith was acquitted of one charge of rape, one count of extortion, one count of sodomy, one count of indecent assault and one charge of assault (five of 10 charges). All findings of guilty cited in the article related to one female.
That is only part of the story. The incidents related to Webster Smith were publicly announced as 16 pending charges in mid-February 2006. These charges concerned five women. In early 2006 the Coast Guard Investigative Service  (CGIS) began an investigation related to yet another woman (SR) and Webster Smith. This resulted in six additional charges, filed in March 2006. An Article 32 Investigation resulted in dismissal of 12 of the 22 charges.

 This means, 17 of 22 charged allegations were dismissed prior to trial (12 dismissals; five acquittals).(Merle J. Smith Jr.,Esquire, Individual Military Attorney for Webster Smith.

Waterford, CT.)

One 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 have been sent back to the trial court for a new trial. He found that the Case of United States vs Webster Smith should have been returned to the Convening Authority for a new trial.
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 question for the jury to decide. It was a fact question. The jury is the trier of facts. The court-martial judge (CAPT Brian 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 (UCMJ), 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 (SR) 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, CAPT Brian 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 witness was 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. This case should have been remanded for a new trial. To send the case back to the Superintendent of the Coast Guard Academy, the Convening Authority, for a new trial was the only fair way 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. 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.

I believe a great travesty of justice was committed. A gross miscarriage of justice was done at the Coast Guard Academy. The entire process was flawed.
The only evidence was the word of a couple of incredible females. There was no physical evidence whatsoever.
Webster Smith has apologized for his behavior. Confession is good for the soul. It is the first step toward true rehabilitation. No one else involved in the entire episode showed such strength of character. The Academy is a character building institution.

 Cadet Webster Smith was a victim of jealousy, racial discrimination, a violation of the 14th Amendment Equal Protection clause, and last but not the least, a victim of a double standard.
He was one of the most loved and respected cadets on campus. But he had two things going against him. One, he had dated the first female Regimental Commander, and the Dean of Admissions’ daughter. Both were white. Since they were white and Cadet Smith was Black, it did not sit well with the Commandant of Cadets.
Racial Prejudice is still very much alive at the Academy.

 America's fighting men have come in many guises, shapes and sizes. They have had to fight all of America's enemies, both foreign and domestic. Cadet Webster Smith had to fight his own senior officers, friends, and mentors. In the end he was proud. He had fought the good fight. Even TIME magazine carried the quote of the first cadet in Coast Guard history to be tried by a General Court-martial.

http://www.time.com/time/quotes/0,26174,1209244,00.html


Less than 60 days after the verdict was rendered in the Webster Smith case, I predicted that the case would make it all the way to the Supreme Court.

Supreme Court justices are not elected. They are appointed with the advice and consent of the Congress. The Nine Justices of the Supreme Court are the least democratic branch of the federal government. They have no constituency. They do not have to conform to the biases of the majority. They are the Court of Last Resort; so, they are infallible. With few exceptions, they have dealt with evenhandedly with all of America's citizens.

They do not have to sit for re-election. They are appointed for life. They are totally isolated from busy bodies on the Right or Left Side of the political spectrum. With one stroke of the pen, they may act to curb injustices, correct unsavory attitudes, and breathe new life into a living Constitution.

Historically we have looked to them to solve our most vexing social problems. They are America's ultimate arbiters of justice; and, that includes military justice.

Aside from the Webster Smith Case, I cannot think of any case or incident in Coast Guard history that affected more directly the hearts, minds, and daily lives of all members of the United States Coast Guard.

The U.S. Coast Guard Court of Criminal Appeals had to review the Webster Smith case. It had no choice. Article 66 of the Uniform Code of Military Justice, requires the Coast Guard Criminal appeals Court to review all cases of trial by court-martial in which the sentence as approved by the Convening Authority extends to dismissal of a cadet from the Coast Guard, and/or a dishonorable or bad conduct discharge, unless the accused waives appellate review. Webster Smith did not waive appellate review. He appealed his conviction. Oral arguments in the Case of The Appeal of the Court-martial Conviction of Cadet Webster Smith was scheduled for January 16, 2008 in Arlington, Virginia.

A legal brief filed by his lawyers claimed the convictions should have been thrown out because the defense team was not allowed to fully cross-examine one of his accusers during Smith's court martial. They said that meant the jury didn't hear testimony that the accuser, a female cadet, Shelly Roddenbush, had once had consensual sex with a Coast Guard enlisted man and then called it sexual assault. If she lied once, she very well could have lied again.

The Coast Guard Court of of Criminal Appeals is made up of Coast Guard Officers. It has the power to decide matter of both fact and law. Decisions of the Coast Guard Court of Criminal Appeals may be appealed to the Court of Appeals of the Armed Forces (CAAF). It is made up of five civilian judges, appointed to 15 year terms. It decides only issues of law. Its decisions may be appealed to the U. S. Supreme Court. The Webster Smith Case followed this long and winding path all the way to the Supreme Court.

The U.S. Supreme Court has refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment.

Webster Smith was proud of his decision to fight the good fight all the way to the end of the road. See TIME magazine June 29, 2006.

http://www.time.com/time/quotes/0,26174,1209244,00.html


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