Sexual Assault At Coast Guard Academy, The Webster Smith Case Chap 10

CHAPTER 10

No Review, No Comment

The U.S. Supreme Court has refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment. The decision of the Court of Appeals for the Armed Forces (CAAF) has become the final decision in the case. (Note 19)

That is a shame because the military justice court-martial and the appeal system is not race neutral. A seemingly race neutral system has operated to deny minority members of the armed forces the equal protection of law. Institutional racism and racial profiling operating in a culture that evolved under the system of slavery have reduced Black appellants to a stereotype and disproportionately predetermines that they will be convicted and that they will not prevail on appeal.

Since the Coast Guard is in the Department Of Homeland Security, Smith has the right to submit additional information to Secretary of Homeland Security Janet Napolitano before she approves his sentence.

Smith also has the right to seek a new trial before the Coast Guard Court of Criminal Appeals. He would have to submit new evidence that has not already been considered in the case. He could also have his record cleaned with a presidential pardon. Since he is a resident of Texas he will have to register as a sex offender.

Most Supreme Court watchers had expected the Supreme Court to hear the case or at the very least to give an explanation of why not.

This case implicated a deep federal 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 cross-examination of SR. That approach conflicts with the holdings of five circuits, which consider comparable

Confrontation Clause claims de novo, reserving abuse-of-discretion review for non-constitutional 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 cross-examination] 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 perpetuated 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.

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, non-uniformity 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.

Justice truly was not served in this case. American justice has been given a black eye. All American citizens cannot expect the equal protections of the law guaranteed by the United States Constitution. Even those who put on the uniforms of the Armed Forces of the United States of America and swear to defend and to protect the Constitution cannot rely upon its legal guarantees. The Case of Webster Smith is but one grain of sand upon the beaches of American justice. May God save us all from an experience like this at the bar of American justice.

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