Sexual Assault At Coast Guard Academy, The Webster Smith Case Chap 5

CHAPTER  5

The Runaway Jury

The presumption of innocence is principle that requires the government to prove the guilt of a criminal defendant and relieves the defendant of any burden to prove his or her innocence. It is essential to the criminal process. The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts. The people of the United States have rejected the alternative to a presumption of innocence—a presumption of guilt—as being inquisitorial and contrary to the principles of a free society.

The Supreme Court has ruled that, under some circumstances, a court should issue jury instructions on the presumption of innocence in addition to instructions on the requirement of proof beyond a reasonable doubt. A presumption of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case. That is precisely what happened in the Webster Smith case.

In his opening statement to the Jury Panel on June 26, 2006 the prosecutor, Commander  Ronald Bald, described Cadet Smith as a manipulative senior who preyed on lonely women. 

Cadet  Smith pleaded not guilty in the first court-martial of a cadet in Coast Guard Academy history. The charges ranged from rape, sodomy, and extortion to assault of the female cadets.

He was tried before a jury panel of Coast Guard officers including four white men, one white woman, three Black men and a man of Asian descent. The senior member was a captain with command experience. There were no cadets on the panel. Since there were no cadets on the jury panel, it can truly be asked whether he was afforded the best qualified jury or a jury of his peers. Were the best qualified members appointed to the panel, as the Manual For Courts-martial (MCM) and the UCMJ mandate?

The Uniform Code of Military Justice (UCMJ), (10 USC sec.801 et seq.) supplemented by the Manual For Courts-martial (MCM) provides guidance for a commander empowered to convene a court-martial. The UCMJ and the MCM both contain the following sentence:

"When convening a court-martial the convening authority shall detail as members thereof, such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. (UCMJ Art. 25(d)(2)

The MCM specifically states that if it is anticipated that complicated issues of law will be presented before a special court-martial, the convening authority should give consideration to appointing as a member of the court a qualified attorney-at-law. In the Webster Smith case there were no complicated issues of law, but there were some complicated issues of fact. Such being the case, it would have been appropriate for the convening authority to detail at least one first class cadet to the jury panel. The failure to do so prejudiced the case against Webster Smith before the trial started.

In courts-martial constituted similar to the Smith court-martial, I have made the following or a similar argument many times while serving as defense counsel. None of the members of Webster Smith's jury panel had been a cadet at the USCGA while female cadets were living in Chase Hall. Only one had ever attended the USCGA; none had socialized with female cadets; none had attended cadet athletic parties; none had read the cadet regulations; none had counseled a cadet concerning sexual assault; none had first-hand experience with the four class system; none had indoctrinated female cadets; and none had ever had a cadet girl friend. In the unlikely event that any panel member had ever dated a female cadet, chances are that cadet would not have been the first female regimental commander, who got pregnant, had an abortion. A cadet who continued to date Webster Smith, the putative father, for another six months as a cadet while living in Chase Hall. Only after being counseled by Coast Guard lawyers did she come to the conclusion that she might have a credible argument that she might have been raped at some point during her 18 month relationship with the accused. Added to all that was the female rumor mill in Chase Hall that was ringing with the news that Webster Smith was dating another female and he had told her about the Regimental Commander’s pregnancy.

If, at least, one cadet had been on that jury, he could have explained to the members during deliberations many of the things that they were completely ignorant of. I contend that the jury did not have a clue as to what living conditions were like in Chase Hall, nor did they know what the social environment was like between Black male upper-class cadets and white female cadets in any of the four classes.

The members who sat on the Webster Smith jury panel probably did not know that cadets are in charge of the day to day affairs in Chase Hall. Cadets run the barracks. Officers are not normally permitted in Chase Hall without a cadet escort. So, many officers might not be aware of the atmosphere that prevails in Chase Hall. It would be difficult for one who has not lived in Chase Hall to put the testimony of a cadet about social happenings into proper perspective.

The cadets in Chase Hall speak a different language than the panel members were familiar with. Here are a few typical examples. In Chase Hall the roommate of a cadet is called his “wife”. This was before women were admitted as cadets. An under-class cadet who runs errands for an upper-class cadet is called his “slave”, dating back to the days of Hopley Yeaton, the Father of the Coast Guard. Every upper-class cadet has had, at least, two wives and a slave. Ordinary words are given different meanings in the cadet lexicon.

Without an upper-class cadet to resolve ambiguities and to explain simple terms, the members were forced to speculate, assume, and to read between the lines of the testimony that they heard. In all likelihood, they probably did not correctly interpret the testimony given by the cadets at the Webster Smith trial. Without a cadet on the jury panel, the convening authority did not detail the best qualified members in terms of age, experience, training, and judicial temperament.

That being the case, the jury was not composed of the best qualified people available in accordance with the UCMJ and Art 25(d)(2).

Cadet Smith's attorneys raised the possibility that the charges could have been racially motivated. They said they were pleased by the jury's diversity. Cadet Smith is a Black American, but all the accusers were white females.

Cadet Smith’s military attorney compared the case to the Salem witch trials, in which people were put to death based on concocted stories that were not backed up by evidence.

With no physical evidence in the case, defense attorneys had hoped to persuade jurors that the testimony of the women was unreliable. There was no DNA evidence, no forensic evidence, no rape kit and no crime scene photos. It was a classic case of “he-said, she-said”. It was one cadet’s word against another.

Any jury of reasonable men and women would have had a tough time trying to evaluate the credibility of one cadet against another, even though one was a Black man and the other was a white woman. However, the Convening Authority did something subtle but very shrewd. He waited until the white females had graduated from cadet to officer. That made a world of difference at the trial. An officer is as far from a cadet as the East is from the West. It matters little that not more than 24 hours before the officer was herself a cadet. The perception of the jury was that of an officer making an accusation against a cadet. They saw female officers accusing a cadet; they did not see cadet classmates slandering each other. They did not see former lovers getting revenge and pay-back for betrayal of trust.

The defense counsel team failed to try to offset this psychological disadvantage. They let the female officers testify in uniform wearing all that gold. One after another, a parade of white female officers walked in and took the witness stand and lambasted the black cadet. At the very least, all the witnesses should have been required to appear in civilian attire. A Roman Catholic priest would not have been allowed to testify wearing his clerical collar. It would have been highly prejudicial to the accused. It would give the witness extra indicia of truth telling. It would enhance the credibility of the witness in the eyes of the jury, and perhaps even the judge. This is part of the psychology of trying a criminal case.

Cadet Webster Smith had lost the credibility battle before the jury panel retired to deliberate.

Webster Smith took the witness stand and testified at his own court-martial. Normally, it is not a good idea to let the accused testify at his own trial. Cross-examination can be quite vigorous. He enjoys a Constitutional right to remain silent and not to incriminate himself. He is wrapped in a Constitutional presumption of innocence.  The Government must prove its case beyond a reasonable doubt. Until that happens, the accused is presumed to be innocent.

The judge must instruct the jury that no adverse inference can be made from the fact that the accused did not testify. However, perhaps because there were so many female officers testifying against Cadet Smith, his defense attorneys may have felt that the volume of the evidence forced them to put their client on the witness stand.

Also, having prosecuted and defended in many court-martials, I know that the average military jury member cares very little about the right of the accused to remain silent, or the right not to testify. They also pay little attention to the judge’s instructions not to draw any adverse inferences from the fact that the accused refused to testify. Time after time following a courts-martial I have heard jury members say we wanted to hear what the accused had to say. They say that the accused should testify if he has nothing to hide. Also, they feel that the accused would not be on trial unless he had done something. He may not have committed the acts that he stood accused of, but he must have done something somewhere along the way. He finally had gotten caught. In this case with one female officer after another testifying against a cadet, it was virtually certain that the jury was going to find him guilty of something. The cards were stacked too high against him. In a case of pure “he-said, she-said”, it would be a bit difficult to give the jury any portion of “he-said” without the accused taking the witness stand in his behalf. The rules prohibiting the admission of hearsay evidence forced the accused to take the stand.

Only in a court-martial tried by a “judge alone” can an accused be reasonably certain that no adverse inference would be drawn from his refusal to testify. Only then can an accused take a chance on relying upon his constitutionally guaranteed presumption of innocence.

If I had been the lead counsel in this case, I would have requested a trial before a judge alone. In which case, I would only have had to convince one person of the innocence of my client. Or to be precisely correct, I would have had only to convince one person that the Government had not sustained its burden of proof. That is to say, the prosecution had not proven my client was guilty beyond a reasonable doubt. Until that had occurred, my client was still presumed to be innocent. A jury is like a box of chocolate; you never know what you are going to get.

The burden of proof is not on the accused; it is on the prosecution. The burden never shifts. It is always on the Government. The accused is not required to prove his innocence. That is his constitutional guarantee. He is presumed to be innocent.

Commander Ronald Bald, the prosecutor argued that Webster Smith's stories do not make sense and that the defense did not prove that his accusers concocted their stories in a conspiracy against him. That was totally improper and objectionable. He was arguing to the jury that Webster Smith was required to prove his innocence or they should convict him.

The Prosecutor went on to argue to the jury that "The defense hasn't given you a sisterhood. They haven't given you a conspiracy. They haven't given you collusion". This would clearly appear to be prosecutorial misconduct and should have been reversible error. I cannot imagine any instruction from the military judge that would have cured the harm done by such an argument.

That argument alone set the Anglo-American judicial system back more than 200 years. It took American justice back to a time before we had drafted a Constitution, or fashioned a presumption of innocence, or afforded an accused a right not to incriminate himself and to remain silent. It is inconceivable that this mockery of a trial took place in an American court in 2006.

If the defense had tried this case before a judge alone, and if Webster Smith had not testified, based on the testimony adduced at trial, it would have been virtually impossible for the Government to prove its case based on the testimony of SR alone. There was no physical evidence. The case was based on the credibility of the witnesses. If Webster Smith had not put his credibility in issue by taking the witness stand, it is my concerted opinion that the judge would have had to dismiss the charges at the end of the Government’s case in chief. It is at that point in a trial that the defense usually makes a motion to dismiss the charges because the Government had not proven all of the elements of the offenses beyond a reasonable doubt.

Moreover, in a trial before a judge alone, I would never have allowed my client to get anywhere near the witness stand. I would have rested my case without calling any witnesses. I would have taken the chance that the judge’s oath as a judicial officer to weigh the evidence objectively and fairly would out-weigh his possible human prejudices as a white man.

One may argue that this is Monday morning quarterbacking at its worst. However, now that all of the relevant facts are on the table, it is clear that the Government really had no case. It was counting on Webster Smith to lose the case. That would be like a husband losing an uncontested divorce case. This would explain why the Article 32 Investigating Officer recommended to the Convening Authority that he should not convene a court-martial. The minor charges, like disobeying an order not to try to contact any of his classmates, could have been dealt with at an Article 15 Captain’s Mast. That would have constituted non-judicial punishment.

On June 28, 2006 after about eight hours of deliberation, the panel found Cadet Webster Smith guilty of indecent assault, extortion in exchange for sexual favors and sodomy, which in military parlance includes oral sex. All those charges involved only one of the four accusers, SR.

He was acquitted of several charges that stemmed from alleged sexual encounters with the other three female cadets. The defense had argued that the sex was consensual and that the women had colluded against Webster Smith. They were all scorned lovers of one sort or another. Hell has no fury like a woman scorned.

With no physical evidence outside of e-mails and phone records, the trial pitted Smith's version of events against those of his accusers.

Smith was acquitted of all charges involving his conduct with all of the women, except SR. One, his former girlfriend (KN), testified that he raped her after she became intoxicated during a party at the Naval Academy in Annapolis, Maryland. She did not tell them that after she became pregnant and decided to get an abortion, it was Webster Smith who took her to the hospital. He also took care of her and ran errands for her while she convalesced after the abortion. Then he kept their secret for over six months. When he made the fatal mistake of divulging their secret she turned against him.

Smith was found not guilty of the charge that started the investigation. In the course of the investigation information was uncovered that gave rise to other charges. He was found guilty of offenses found during the course of the investigation. He was sentenced to, among other things, six months in jail.

Of the 10 charges referred to the general court martial, 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 woman (SR). He was also convicted of two other minor military offenses. 

However, that is not the full story. The incidents related to Cadet Smith were publicly announced as 16 pending charges in mid-February 2006. These charges related to five women. In early 2006 the Coast Guard Investigative Service (CGIS) undertook an investigation related to yet another woman and Cadet Smith. This resulted in six additional charges, filed in March 2006. The Article 32 Investigation resulted in dismissal of 12 of the 22 charges. This is, 17 of 22 charged allegations were not substantiated (12 dismissals; five acquittals).

After spending about six months at hard labor and pre-trial confinement, Cadet Smith was sentenced to an additional six months in jail at a Navy brig. No credit was given for the time already served in confinement. In a normal case like this, the six months of pre-trial confinement would have been credited to the sentence adjudged. The accused would not have had to serve any additional time in confinement.

About forty years after Merle James Smith became the first Black American to enter the Coast Guard Academy in 1962, Webster Smith had become the first cadet to be tried by court-martial and sent to jail in 2006. The first female cadets entered in 1976, and they were making enormous strides. Vice Admiral Manson K. Brown, Class of 1978, had been the first Black Regimental Commander. LT Kristen Nicolson, Class of 2006, was the first female Regimental Commander.

Adding female cadets to the cadet barracks at Chase Hall had certainly changed the chemistry within the corps of cadets. Living side by side in the cadet barracks introduced new challenges to the strict military discipline required by the UCMJ, cadet regulations, and the Honor Concept.

Athletic celebrations on and off campus took on a new dimension. Binge drinking and illegal drugs became a staple. Women gave as good as they got. Sexual encounters of every description became common. How many women became pregnant and had abortions we will never know. There was one that we are positive of. She was Webster Smith’s girlfriend.

All of the female cadets involved with and associated with Webster Smith escaped clean without any consequences for their actions or their behavior. Mother Nature was the only one who exacted a penalty. Natural Law resulted in a pregnancy. An abortion followed.

If women are equal, they should be treated as equal. Not a single woman was disciplined under the UCMJ or the cadet regulations. All of the female cadets involved in this case graduated and were commissioned as Coast Guard officers. Their testimony at the court-martial painted a picture of female cadets who were untrustworthy, arrogant, and certainly not ladies. Their conduct was unbecoming an officer and a lady.

There were many bad decisions made in the course of convening this court-martial. The most regrettable is that it was deemed necessary. Another is that a message has been sent to all future cadets that women have the freedom to act as recklessly as men, yet at the same time they will be immune from consequences.

How can women ever earn the complete respect of their male counterparts when they continually rely upon their gender trump card? They are forever destined to be daddy’s girl; always cream puffs with almost the right stuff. This case has shown every cadet that women can get the same privileges as men and not have to shoulder the same responsibilities. The Coast Guard applied a double standard with respect to gender, and a discriminatory standard with respect to race and ethnic origin.

These women were witnesses at a public trial yet they were accorded the equivalent of rape shield protection. This was not a rape case. Not one of the women had been raped. There was testimony of consensual sex acts. Some of the consensual sex acts were unlawful because, among other things, they occurred in Chase Hall, or at Academy functions. How could unlawful consensual sex acts result in charges against only one of the participants? It takes two to tango. What does it mean for a cadet or a future U.S. military officer to act like a lady? If Webster M. Smith is no gentleman and is unfit to be an officer in the U.S. Coast Guard, then so are the women he was involved with. These women are not ladies and are unfit to be commissioned officers. The women in this case should be held accountable to the same standard of conduct.

For a pure ice-water jolt to the senses few juries in recent years have surprised me as much as the Webster Smith court-martial jury. The verdict is in on the jury. We know that, at least, seven of the nine members were brain-dead. One was certifiably insane.   This jury said, in essence, we are not concerned about the truth. We can't handle the truth. Just give us enough facts to buttress our predispositions. We can't be bothered with such legal niceties as who has the burden of proof, or whether he has met that burden, or whether all the elements of the offense has been proved beyond a reasonable doubt. Cadet Smith has not proven to us that he did not do it. If he was not guilty of something, then they would not have convened this general court-martial. We are ready to convict based on the prosecution's theory of the case. Pure conjecture, rank supposition, and casual coincidence are enough for us.

It is truly shocking to the conscience how far this jury was prepared to go to ignore the evidence and to send a message to the fleet. You could get more justice from a firing squad than the president of this jury was prepared to give this poor cadet.

Anyone who has not seen "Twelve Angry Men" should run out and buy it. After you have watched it you will have some sense of what the deliberations were like in the Webster Smith case. There was a four-bagger in there, that is a Coast Guard captain, arguing for 5 years of confinement and a $100,000.00 fine; and a two-stripper, that is a lieutenant, pleading for no more than 6 months of confinement. Thankfully this junior officer had the courage of his convictions. After hours of haggling, the jury only awarded 6 months confinement.

The Lieutenant wanted the punishment to fit the crime, but the senior officer wanted to send a message to the fleet that this is how the Coast Guard handles sexual predators. How sad. He sent a message alright. The message was heard loud and clear around the world. The message was that wisdom does not come with age, nor does sound judgment come with rank. The message was that a General Court-martial jury panel was prepared to destroy Cadet Webster Smith and bankrupt his family purely on the disputed and uncorroborated testimony of a coached witness.

It is shocking that some senior officers can exercise such poor judgment. In their reckless rush to send a message to the fleet that this is how the Coast Guard handles sexual predators, they did not want to be confused with the truth that Webster Smith was set-up. Some of the jurors were prepared to sacrifice Mrs. Smith's pride and joy to make a statement. This was to be another first for the Coast Guard.

Not content merely to be the first service academy to admit women, these officers wanted the Coast Guard Academy to be the first to show the world how the Coast Guard will legally and with due process make an example of an innocent cadet.

A mind is a terrible thing to waste, but they wanted to waste the life of Webster Smith to make a point.

The world was not the only ones watching. The corps of cadets was also going to school on what was happening in Hamilton Hall. This was the Doug Wisniewski School of Ethics, and Judgment 101. His concept of military justice more resembles ritual sacrifice. The cadets in Chase Hall saw senior officers recklessly out of control. They saw Captain Doug Wisniewski cannibalizing the cadet corps. Honor was dead. The Honor Code and the Honor Concept was observed more in the breach than at all. Keep your head down and say nothing. All of a sudden it is dog eat dog and every man for himself. In a rat race only the biggest rat can win. Long live King Rat. This is the Legacy of Doug Wisniewski.

Cadet Smith's Dream Team of attorneys raised the possibility that the charges could have been racially motivated. They said they were pleased by the jury's diversity. Cadet Smith is a Black American, but all the accusers were white females.

With no physical evidence in the case, defense attorneys had hoped to persuade jurors that the testimony of the women was unreliable. There was no DNA evidence, no forensic evidence, no rape kit and no crime scene photos. It was a classic case of “he-said, she-said”. It was one cadet’s word against another.

Any jury of reasonable men and women would have had a tough time trying to evaluate the credibility of one cadet against another, even though one was a Black man and the other was a white woman. However, the Convening Authority did something subtle but very shrewd. He waited until the white females had graduated from cadet to officer. That made a world of difference at the trial. An officer is as far from a cadet as the East is from the West. It matters little that not more than 24 hours before the officer was herself a cadet. The perception of the jury was that of an officer making an accusation against a cadet. They saw female officers accusing a cadet; they did not see cadet classmates slandering each other. They did not see former lovers getting revenge and pay-back for betrayal of trust.

Webster Smith appealed his conviction all the way to the Supreme Court. The U.S. Coast Guard Court of Criminal Appeals scheduled oral arguments in the Case of The Appeal of the Court-martial Conviction of Cadet Webster Smith for January 16, 2008 in Arlington, Virginia.

A legal brief filed by his lawyers claimed the convictions should be 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, (SR), had once had consensual sex with a Coast Guard enlisted man and then called it sexual assault.

LCDR Patrick M. Flynn, the government's lawyer for the Coast Guard Court of Criminal Appeals, said 27 November 2008 that the jury "heard enough" and the trial judge was within his rights to impose reasonable limits on the cross-examination.

"They didn't need to hear the additional details the defense is arguing they should have been allowed to hear."

The defense also was asking the court to set aside Smith's convictions on two lesser charges of failing to obey an order and abandoning watch.

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