CHAPTER 3 Before The Court-martial

On December 4, 2005 an officer on duty at the United States Coast Guard Academy (USCGA) received an allegation of sexual misconduct from a cadet, setting off an inquiry by the Coast Guard Investigative Services (CGIS), based in Washington, D.C.. (Note 1)

The commandant of cadets, Captain Douglas Wisniewski, took immediate action to initiate an investigation into these allegations.

“Sexual misconduct” at the USCGA is defined as “acts that disgrace or bring discredit on the Coast Guard or Coast Guard Academy and are sexual in nature”, including lewd or lascivious acts, indecent exposure or homosexual conduct.

But the definition also includes consensual acts that are prohibited on academy grounds, such as holding hands, kissing in public or having sex.

From 1993 until the spring semester of 2005, the Coast Guard Academy had 10 reported incidents of sexual misconduct, according to information provided by the CGA. Of those, six incidents resulted in dismissal of the accused and two ended in resignation. In the remaining two cases, there was insufficient evidence to pursue charges. No action was taken against the accused.

The Coast Guard Academy had 982 cadets, nearly 30 percent of whom were women in 2005. One out of every three cadets was a female. In the USCGA the torch had passed to a new gender.

Women represent about 30 percent of CGA cadets, compared with less than 20 percent at the Air Force and Naval Academies and about 15 percent at West Point, the Army Academy.

Cadet First Class Webster Smith was charged with sexually assaulting six female cadets in Chase Hall, the cadet living quarters, and in other locations. (Note 2)

Cadet Smith was separated from the corps of cadets after the first complaint was filed on December 4, 2005. He was placed in pre-trial confinement and made to perform hard labor. No charges had been filed against him; but he was confined, forced to work at hard labor on the boat docks during the day, and forbidden to attempt any form of communications with his friends in Chase Hall. He could not go to class to continue his academic studies or eat in the cadet ward room. At night he was transported to the Navy enlisted men’s barracks at Groton Naval Submarine Base across the Thames River from the USCGA. (Note 2)

He was not placed in protective custody. No threats had been made against his safety. It was feared that any contact with the potential government witnesses against him would jeopardize the case the Administration was trying to build. No justification was given for these draconian measures.

Smith, a linebacker on the academy's football team, was charged February 9, 2006 under the Uniform Code Of Military Justice (UCMJ) with rape, assault, indecent assault and sodomy with female cadets. He had served about two months of pre-trial confinement before any charges had been preferred against him.

When I first heard that Admiral James Van Sice was considering convening a court-martial to punish a CGA cadet, I was flabbergasted. After much soul searching, I decided to write him a letter.

In my letter to Admiral James van Sice, the Superintendent of the United States Coast Guard Academy, and the man who convened the court-martial that tried Cadet Webster Smith for a long list of sex crimes, this is what I said:

February 2006

Dear Admiral Van Sice,

I think a great travesty of justice has been committed. It appears that a gross miscarriage of justice has been done at the Coast Guard Academy. What I cannot figure out is was it done ignorantly or by design. How do you frame a man, rig a court-martial, and commit the greatest travesty in the history of the Academy in broad daylight with the whole world watching? With bravado, that’s how.

The first thing that you do is, you pick the lawyer for the accused. Then you give the lawyer a medal, something of distinction, like the Coast Guard Achievement Medal. And you select someone who was on the Coast Guard Academy board of Control, and someone you appointed to the Board of Directors of the Coast Guard Foundation. You do not want anyone who might be too independent of the Coast Guard Academy. You make sure that you choose someone with broad corporate law experience, someone with broad experience in negotiating and drafting contracts, someone like the former General Counsel for General Dynamic Electric Boat. And you be sure that he has limited or no experience in criminal law, and trial and defense work, someone not very comfortable in a criminal court room.

Then you refuse to give the accused a Coast Guard Detailed Military Counsel, because you know that a Coast Guard lawyer might have too much ethical integrity to go along with the travesty. So, you look around and you find an Individual Military Counsel from the JAG Corps of the Navy. You want someone not familiar with the Coast Guard Rules of Practice and Procedure and the Local Rules. You want someone that you can control, not someone who will swear charges against a prosecution witness who gives self-incriminating testimony at trial without a Grant of Immunity, either Transactional or Testimonial. Also, you need someone who will not ask to see the written Grants of Immunity and have them admitted into the Record as exhibits.

Also, you need someone who will not prepare for the trial. It would not be convenient if he brought a lot of Pre-Trial motions to suppress testimony and Motions In Limine to prevent prosecution behavior that would be prejudicial to the Defendant, like newly commissioned officers being allowed to testify in Ensign uniforms while the accused is wearing cadet garb.

When you schedule the trial is important. In order to give leverage and unfair advantage to the prosecution witness, you wait until after graduation, so that the prosecution has a parade of newly commissioned officers to testify against the cadet.

Then you have to agree not to charge the prosecution witness for crimes against the Uniform Code of Military Justice that you know they committed with Webster Smith. It would be difficult to commit sodomy alone. So both participants would be equally guilty. During their testimony all of the female witnesses gave declaration against their interests and made self-incriminating statements.

And you know that under the UCMJ, anyone can swear charges against anyone else. A seaman can swear charges against an admiral, or a private against a general. Even Webster Smith could swear charges against all of the witnesses against him and those charges have to be disposed of in due process.

That is another reason why you must choose the attorney for the accused very carefully. You do not want him swearing charges against the prosecution witnesses who have no immunity from prosecution. It is still not too late.

Next, at trial you give no Article 31 Warnings. Not a single reporter reported that the witnesses had attorneys or that they were warned. They had to be told that they were suspected of having committed an offense under the UCMJ, that they had a right to remain silent, that anything they said could be used against them in a court of law. Not to warn a person whom you suspect is guilty of a crime under the UCMJ before asking them any questions is a violation of the UCMJ.

Not to put this information before the jury was procedural error. Not one newspaper reported that this information was given to the jurors. If it had been done someone would have reported it. Even non-legal trained reporters know how to report facts whether they seem important to them or not.

If you did what I think you did, you may be subject to charges under the Uniform Code of Military Justice for dereliction of duty. If you did not give the witnesses who testified against Webster Smith grants of immunity, and you allowed them to testify on the record, under oath, and give incriminating statements, without giving them Article 31 warnings, then you have violated the UCMJ. Also, the Defense Team would have had to be given copies of the Grant of Immunity, and the Jury would have had to be told that the witness was testifying under a Grant of Immunity, because that is a factor in judging the credibility of the witness.

Nowhere was it reported that the witnesses came into court with their own lawyers. That would have indicated that they had not been granted immunity from prosecution. Nowhere was it reported that the witnesses were given Article 31 warnings. At least one reporter would have picked up on that. That is a very relevant and important fact.

I cannot believe that you did what I think you did. That would mean that you were running a Three Ring Circus. It may turn out that you guys are the new Gang That Could Not Shoot Straight.

If you allowed those females to testify to things that they engaged in with Webster Smith, things that were violations of the UCMJ, and were not given their own Detailed Military Counsel, and were not given written Grants of Immunity, then they have incriminated themselves and are subject to prosecution under the UCMJ. Since you convened a court-martial to try Webster Smith, then you are duty bound to swear out charges against every woman who testified that she engaged in sodomy, public drunkenness, and conduct unbecoming an officer and gentleperson, among other things.

We are a nation of laws, and Webster Smith was entitled to the equal protection of the law. The Constitution of the United States guarantees him that. When you decided to prosecute him only and not his equally culpable partners for sodomy, you denied him the equal protection of the law. That was a gross violation of his civil rights. Also, if you granted the women immunity and not Webster Smith, then you had better have had a very good reason that will withstand Constitutional scrutiny. Moreover, if you allowed those women to testify under oath, on the record, without any Article 31 warnings, and no grant of full immunity, you placed them in jeopardy. You may have ruined all of their lives.

I am going to allow you and the Commandant (G-L) and Commandant (G-P) time to straighten out this mess. If you do not, I will refer it to the NAACP Legal Defense Fund, Inc. Then I will contact the Congressional Black Caucus, and Webster Smith’s senators from Texas, and the Civil Rights Division of the Justice Department to ask them to start an investigation to see if any of Cadet Webster Smith’s civil rights were violated.

/s/

L. Steverson

LCDR, U. S. Coast Guard (Retired)

The Article 32 Investigation

The Article 32 Investigation was convened on March 21, 2006 to determine whether there was probable cause to convene a court-martial to prosecute the charges. The Investigating Officer received the testimony of seven female cadets who accused Cadet Smith of assaulting them between May and November 2005.

The USCGA Superintendent, Admiral James Van Sice, was the Convening Authority.

Before cadet Webster Smith could be court-martialed an Article 32 Investigation was required to determine if there was probable cause to believe that a crime under the UCMJ had been committed. It is the military equivalent of a grand jury. The Article 32 Investigating Officer was Commander Steven Anderson.

Navy Midshipman Kristin Strizki was among the final witnesses for the government at the Article 32 hearing. Five female Coast Guard Academy cadets, who were alleged victims, testified in secret at the Article 32 hearing. Strizki's testified in public. She testified that the two Coast Guard cadets, Smith and KN, were visiting her in Annapolis, Maryland, when they began drinking at an off-campus house. She said KN passed out after consuming more than 2 liters of wine and two beers. (Note 4)

The next morning, Smith suggested Strizki take her friend to get the morning-after pill, she said.

Strizki said her friend had no recollection of having sex with Smith and confronted him.

"He said, 'Oh please, you wanted it,'" she testified. "That's when she said, 'There is no way in hell I would have wanted to have sex with you last night, even if I was sober.'" (Note 4)

Another witness, Coast Guard cadet Jere Cherni, testified that the alleged victim became pregnant and underwent an operation that she felt was immoral. After objections from Smith's attorneys, Cherni was not permitted to specify the operation. (Notes 8, 9)

After hearing all of the evidence, CDR Anderson made a recommendation to the Convening Authority that the charge of rape NOT be referred to a General Court-martial. That was like a Grand Jury that refused to indict. It refused to return a true bill of indictment. The District Attorney, at that point, would be foolish to waste the taxpayers' money pursuing charges that were not legally supportable and that he could not prove. The only reason for going ahead in spite of the failure to indict would have been if he had a personal vendetta against the accused or a political motive.

The Article 32 Investigating Officer did not feel that there was sufficient evidence to support the charge. Admiral Van Sice, Captain Wisniewski, and Commander Gill rejected the recommendation of the Article 32 Investigating Officer and referred the charge of rape to a General Court-martial. Admiral Van Sice and Captain Doug Wisniewski were not concerned about wasting the taxpayers' money; nor were they worried about being re-elected. They were secure in their position, and they appear to be blinded by rage and other more revolting motives. They are in a position of public trust, but a reasonable person would have had to question their judgment. All of the cadets at the Academy are in their care for safekeeping and nurturing. They did not hesitate to sacrifice this young cadet for some sinister ulterior motive. Who were they trying to impress?

Judge Paul Weil, a federal administrative law judge who decided many discrimination cases for the Department of Transportation, wrote a long time ago in one of his decision that the Coast Guard has a long history of not dealing fairly with its Black personnel and officers. No one told Webster Smith's parents that before they entrusted their precious son to the Coast Guard Academy's Commandant of Cadets.

The Article 32 Investigating Officer was correct in his assessment. At the Trial Cadet Webster Smith was found not guilty of raping his girlfriend, Cadet KN. He was found guilty of extorting sexual favors from Cadet SR. These charges were added at the last minute, but Cadet RN lied through her teeth. It was alleged that Webster Smith was holding a secret over SR that she was afraid would ruin her career if revealed. At the Trial no one seemed to want to know what the so-called secret was. Well, the secret was that she was having torrid sex with a Navy enlisted man in Virginia the previous summer.
Webster Smith never revealed her secret. He did not even tell his mother and father. They had not been able to speak to him. He was being held off base without any contact with anyone, except his lawyers. He did not extort SR for sexual favors. She extorted him and lied about it under oath.

On 19 October 2005 SR sent Webster Smith 3 text messages. Each time she asked him to come to her room. The first time he came to her room, she reminded him of their conversation in Virginia the previous summer, when they fantasized about taking nude photos of each other. Webster did not bring a camera to her room, but she was ready with her camera. They took nude photos of each other with her camera, and he left. There was no touching and there was no sex.

When Webster Smith returned to his room, SR text messaged him a second time, and asked him to come back. When he arrived the second time, SR offered to give him a back massage. When she had finished, he offered to return the favor. They both had their clothes on, but she later alleged that he touched her breast. They did not engage in any sexual acts. Smith went back to his room.

Cadet SR sent him a third text message asking him to come back to her room a third time. She said her legs were sore. Smith massaged her legs and they both got turned on resulting in his performing oral sex on her. When he was finished he stood up to leave. That is when she reached out and grabbed him by his belt and pulled him back to her. She unzipped his fly and took out his penis. He stopped her. He told her that she did not have to do that just because he had serviced her. She said "Yeah, right!" And she proceeded to perform oral sex on him. Then he left.

That does not sound very much like extortion. Extortion should be made of sterner stuff. If SR had been extorted or coerced in any way, why did she call him back two more times? Did she later tell a lie of her own volition or was she coached?

The three sexual encounters occurred in her room on 19 October 2005. Nothing was ever mentioned concerning the events of that night until March of 2006, six months later. When SR was told that her friends needed her help, she told of the events of that night. They told her that they were looking for anyone who had had any sexual involvement with Webster Smith. The events were turned around just enough so that it would seem that Webster Smith had taken advantage of her. He had not. He was a victim of a malicious campaign of lies. A conspiracy had been hatched. The foul deed was in the making. Poor trusting good friend Webster Smith was being duped.

At a Pre-trial hearing, before the Jury was seated, when Cadet SR was called to testify in a motion's session, she pleaded the 5th Amendment. She refused to testify on the grounds that she might be incriminated. Later, at trial, she testified, and she lied. No one reported that she was given her Article 31 (right against self-incrimination) Rights, but she testified. What happened between the Pre-trial Hearing and the trial in front of the jury? Did she make a deal with the Prosecutor and the Convening Authority?

No one reported in any media that she was given a grant of immunity. No written Grant of Immunity was admitted into evidence, or shown to the jury. What happened? Even the lies she told incriminated her.

The charges involving her are the only charges that Webster Smith was found guilty of, except for one other. That was disobedience of an order. The order was not to send any Email messages to his friend at The naval academy at Annapolis, MD.. He sent one Email to his friend. For that he was found guilty of disobedience of an order. That seems awfully petty.

These childish pranks had landed him in jail. The lies of an unscrupulous woman and sending an Email to a friend ended his career and sent him to jail. It ruined a perfect life. He had never received as much as one demerit in his life. All through Navy Prep School he had not received one demerit. All through three and a half years at the Coast Guard Academy, he had not received one demerit. He was on the Regimental Command staff the previous summer.

When he ran afoul of Captain Doug Wisniewski and divulged KN’s abortion secret his military career was over. All it took was a few lies, a few innocent but promiscuous young females, and a very angry, ruthless, and powerful captain. This was an abuse of process. To go against the Article 32 Officer's recommendation was an abuse of discretion. To suborn frightened young girls to give biased and slanted testimony was an abuse of the prestige of the Academy. To use the Military Justice apparatus for his own personal vendetta was an abuse of process.

A revealing account in the Navy Times concerning testimony at the trial adds some more background:

Smith’s former girlfriend (KN) testified on the opening day of the court-martial that on the night when she and Smith traveled to the Naval Academy at Annapolis she blacked out early and learned the next morning that she and Smith had had sex. Smith told her the condom had broken and recommended she seek emergency contraception, but she did not know whether to believe him, she said.

She also said she couldn’t remember details about that morning, including what she was wearing or whether she looked for physical evidence indicating they’d had sex.

Weeks later, she took a home pregnancy test.

“When did you realize that the accused had actually had sex with you?” asked CDR Ronald Bald, the military prosecutor.

“When I saw the positive result on the pregnancy test,” she said.

“What did you think had happened?” Bald asked.

“I thought that I had been date-raped,” she replied.

Yet their relationship continued. The night after the rape allegedly occurred, the witness acknowledged, she and Smith attended a concert with friends and then spent the night together in a hotel. (Note 5)

Testimony during pretrial hearings suggested that KN had had an abortion, but the military judge refused to allow any medical records into evidence on June 20, saying it would prejudice the jury. Jurors were told only that KN did not carry the child to term.

Smith and KN remained close even after they returned to the Coast Guard Academy, she said. They continued to exchange affectionate e-mails and continued seeing each other for dinner. Months after the rape allegedly occurred, she said, they had sex in his car. (Note 7)

And while prosecutors say Smith was a controlling, emotionally abusive boyfriend, one of Smith’s friends testified that KN was equally to blame.

The friend testified that she was watching a movie with Smith the year before when KN, the girlfriend, walked in and said “How could you do that to me? How could you steal him from me,” the witness, Bazinet recalled KN yelling. “It was scary”, she testified. She and KN were classmates.

Smith's military defense lawyer, Lt. Stuart Kirkby, stressed there was no DNA, no forensic evidence, no rape kit and no crime scene photos. He said the former girlfriend "doesn't recall anything from the moment she left the house, conveniently, until the very next morning."

Defense attorneys maintained that KN was not as drunk as she said and suggested that she may have concocted the rape accusation to cover up her embarrassment at having sex with an on-again, off-again boyfriend.

When Smith took the witness stand he testified that he and KN had some drinks and went to a bar. She gave him a look, he said, and they went out to the car, where he said they had consensual sex. She got sick after they had sex, he said, but when they got home, she was able to walk to bed. He said they had sex again the next morning and evening. (Note 10)

What began as a trial against an accused sexual predator ended looking more like a series of murky encounters between college students, with consent often clouded by alcohol. But the case also offered a rare and often unflattering glimpse at cadet life.

Two of Smith's four accusers testified that they didn't believe sexual assault was understood or taken seriously enough on campus. Another said she felt alone, unable to explain her situation.

And Capt. Douglas Wisniewski, the departing commandant of cadets, described fear and suspicion in the student body, saying some female cadets were hesitant to come forward with assault allegations _ a culture that Wisniewski spent months denying existed.

"Clearly this needs to be a moment of change at the Coast Guard Academy," said U.S. Rep. Rosa DeLauro, D-Conn., who has proposed a federal review of the school's sexual assault policies. (Note 16)

Labels: Cadet Webster Smith.