Sexual Assault At Coast Guard Academy, The Webster Smith Case Conduct Unbecoming Appendix 9 (continued)

APPENDIX C

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

M.R.E. 413 [sic] EVIDENCE CADET [SR]

The Defense has provided notice that it intends to introduce evidence  of specific instances  of sexual behavior  involving then Cadet, now  Ensign  [SR].   

This alleged sexual behavior is the subject of the secret that Cadet Smith is charged with threatening to expose in Specification I of  Additional  Charge  II.The Government seeks to bar  the introduction of such evidence pursuant to M.R.E.  412.         At  the Article 39(a) session  held on 23 May 2006, Ensign [SR]  did  not testify be- cause she invoked her right under Article 31(b) to con- sult with an attorney. The accused testified as to the content of his conversations with Cadet [SR]  on this subject.   The Defense also submitted   a written statement dated 15 February 2006 that Cadet [SR] provided to the Coast Guard Investigative Service.

[* Petitioner notes that by order dated October 29, 2009, the court of appeals unsealed this order.   Petitioner has nonetheless changed all uses of the accuser’s name to her initials.]

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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.  In May 2005, Cadet Smith approached Cadet [SR] to inform her that he was hearing rumors from the enlisted personnel assigned to the Station that she had a sexual encounter with an enlisted member assigned to the Station. Cadet [SR] told him that this was true, but that it  was  not a  consensual   encounter.         

Cadet Smith then informed the enlisted  personnel who were spreading the rumors that the conduct was not consensual.

On or about 19 October 2005, Cadet Smith again approached Cadet  [SR].   He told her that he had remained in contact with some of the enlisted personnel assigned  to Station Little Creek  and that the rumors surrounding her  sexual encounter  with  the enlisted  man had continued.  This time she told him that the incident with the enlisted  man had been a consensual  en- counter and  that scope  of the encounter  had  been greater  than she had previously described.

At  the Article  32  hearing, Cadet [SR]   merely stated that she had confided  a secret   to Cadet Smith. In her 15 February 2006 statement, she merely stated that a situation occurred which led to rumors.  On both occasions, she went on to  state that on October 19th, she was concerned enough that Cadet Smith would ex- pose this  secret that 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.

.

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CONCLUSIONS OF LAW

1.    Generally,  evidence that an alleged victim of a sexual offense  engaged in other sexual behavior or evidence  of the  alleged  victim’s sexual predisposition is not admissible. M.R.E. 412(a). There are three exceptions to this general rule, but only one may be relevant  here: evidence of the sexual behavior of the victim is admissible if excluding the evidence would violate  the constitutional rights  of the accused.          M.R.E. 412(b)(1)(C). This   exception  protects the accused’s Sixth Amendment right to confront witnesses and Fifth Amendment  right  to a  fair  trial.       United  States v. Banker, 60 M.J. 216, 221 (2004). In other words, the accused has a right to produce relevant  evidence that is material and favorable  to his defense.  Id.  Evidence is relevant if it tends  to make the existence of any fact more or less probable than it would be without the evi- dence.  M.R.E.  401. Assuming these requirements  are met, the accused must also demonstrate that the probative value of the evidence outweighs  the danger of unfair prejudice.              M.R.E.  412(c)(3).   In  this context, the unfair prejudice is, in part, to the privacy interests of the alleged victim. Banker, 60 M.J. at 223. M.R.E.  412 is a legislative recognition of the high value we as a society place on keeping  our sexual behavior private.

2.    The Defense  offered several theories of why this evidence is admissible. First, the Defense wanted to introduce this evidence to impeach the credibility of Ensign  [SR]  when she  testifies.                                                  The general rule is that a witness’ credibility may be attacked in the form of an opinion  or by reputation concerning the witness’  character for truthfulness.  M.R.E. 608(a). Specific in- stances of conduct of witness may  be admitted,  at the discretion of the military judge, if probative of truth- fulness. I decline to exercise that discretion in this case

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because I believe that, under these circumstances, the probative value of this  evidence  is  substantially out- weighed by the danger of unfair prejudice.  Then Cadet [SR]  was under no duty to be completely forthcoming  with Cadet Smith concerning her private life, particularly under these circumstances since her rumored  con- duct would  be in violation of Coast Guard regulations and could subject  her to disciplinary action or other ad- verse consequences. More important,  despite any limiting instruction, members might consider this evidence less for its tendency to prove Ensign [SR]’s character for truthfulness than for its tendency to prove that she is a bad person.    Finally, conflicting testimony on this point from Ensign  [SR]  and Cadet Smith could easily sidetrack members from  testimony   regarding the charged offenses  which  the member’s  should  be focusing on.

3.    The  Defense also argued  that the members must know the substance of Cadet [SR]’s secret in order for them to  independently assess whether or not she would feel coerced into taking a nude  photograph  with Cadet Smith and later engaging in mutual oral sex in order to protect that secret. While the importance of her secret would be relevant  in this fashion, I do  not think that the members would need to know the specifics.      At  the Article 39(a) session, the Government offered a  generic  formulation that would impress upon the members the seriousness of the secret. In essence, the members could be informed that the secret was in- formation that if revealed could have an adverse impact on her Coast Guard career, including possibly disciplinary action under the UCMJ.

4.    The final rationale  offered by the Defense  at the Article 39(a) hearing  is the most persuasive. The Defense  argued that if the members hear that Cadet

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[SR] originally told Cadet Smith that a sexual encounter  with  another  man  was non-consensual,  and then later admitted that it in fact was consensual, then the members could  use this  testimony to infer  that the same thing is happening in this case.   In  other words, the members could infer that Cadet [SR] has a propensity  to bring false accusations against  men with whom she has had consensual sexual  encounters.  I agree that this theory would   be a valid reason for admitting this evidence under M.R.E.  412(b)(1)(C), but there are two problems with the Defense proffer. First, the evidence proffered  that Cadet [SR] made these statements is not strong since it comes from the accused, who  has an obvious bias. Cadet [SR]’s written statement  and Article 32 testimony  on this point is not clear. She admitted at the Article 32 that she only partially confided in Cadet

Smith in May and fully confided in him on October 19th; however, this is far from proof that she initially claimed that the  encounter was non-consensual.    

In  fact, it is consistent with the rest of Cadet Smith’s Article 39(a) testimony that on October 19th she told him that the scope of  the sexual encounter  had been greater  than she had previously described.   The probative value of this evidence is therefore low.

5.    More important, there is no evidence that Cadet [SR]  made  an  official  complaint  against the un-named enlisted man.   Even if Cadet [SR]  told the accused  in May that the  encounter was not consensual, the nature of this confidential statement is far different from the nature of her statements to law enforcement personnel  that she must have known  would result in a public  prosecution.    Cadet [SR]’s  alleged statement  to Cadet  Smith  was apparently  intended to keep more people from learning  about her sexual encounter with the enlisted  man.   It was not a  false complaint to law

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enforcement.  In contrast, her statements made in this case were to law enforcement personal  and would certainly lead to a public prosecution.  Consequently, even if Cadet [SR] falsely told the accused in confidence that her sexual encounter with the  enlisted man was non- consensual in an effort to suppress rumors, this would have little value in proving that her official allegations against Cadet Smith resulting in a public  trial  are also false. I am convinced that the minimal probative value of  this  evidence  is  outweighed  by danger  of unfair prejudice to  Ensign  [SR]’s  privacy interests  and the potential danger  of  sidetracking the member’s attention to a  collateral issue as  described in paragraph 2 above.

5.    For  the above reasons,  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

APPENDIX D

IN THE UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS

Docket No. 1275

CGCMG 0224

UNITED STATES,

Appellee

v.

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

Appellant

14 May 2008

APPELLANT’S MOTION FOR RECONSIDERATION EN BANC FILED 9 MAY 2008

ORDER

Appellant filed a  Motion for Reconsideration En Banc, and for leave to file a brief in support thereof. On consideration   of  Appellant’s  Motion, filed under the Court’s Rules of Practice and Procedure,   it  is, by the Court, this 14th day of May, 2008,

ORDERED:

That  Appellant’s Motion be,   and   the same   is, hereby denied.

For the Court,

L. I. McClelland

Chief Judge

Copy:     Office of Military Justice Appellate Government Counsel Appellate Defense Counsel