Why Was Webster Smith Court-martialed?

U.S. Supreme Court building.

U.S. Supreme Court building. (Photo credit: Wikipedia)

Why was Cadet 1st Class Webster Smith investigated, charged, tried, and convicted? 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?

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.

Is Justice truly blind? Is our Constitution color-blind? Supreme Court Justice John Marshall Harlan thought so. In 1896 he wrote “Our Constitution is color-blind”. He was the lone dissenter in the Case of Plessy v. Ferguson arguing that separate but equal facilities are inherently discriminatory. Justice Harlan was a voice crying in the wilderness that our Constitution neither knows nor tolerates classes among citizens.

The Webster Smith Case was a litmus test for military justice. Now, we know that Justice is not blind; The Constitution of the United States is not color-blind; and the Supreme Court is not color-blind. Justice peeks past the blindfold to see who stands before the Bar of Justice. And Justices of the Supreme Court peek to see who stands before the Bench. History has shown us that it does make a difference in the outcome of a case, whether the party who seeks relief is white or Black, male or female, rich or poor, educated or uneducated. Like most constitutional and justice “myths”, the claim of impartiality is truly a myth.

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 19th….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 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

https://www.amazon.com/author/cgachall.blogspot.com

 

Friends of Webster

Raised in the house, but field certified.    (http://www.friendsofwebster.com/?p=464)

Well this is interesting. Below is an excerpt from Judge London Steverson’s Book.

I agree with his purpose but I can’t say that I agree with his tone and portrayal. To this day, I don’t blame my peers. In a sense, we were all pawns. And if the tables were turned, I probably one have done the same thing to protect my career. Sad but true.

The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. It is the story of his mother, Belinda; and his father, Cleon; his wife, Lindsey and their daughter; and of his sister and brothers. It is the story of the friends of Webster Smith. They have all been harmed by the violence directed at their son, brother, husband, father and friend.

At the Coast Guard Academy, Webster Smith was a member of the Eclipse, Track Team, Football team, Regimental Staff, and a Swab summer Staff. He represented the Coast Guard in Washington DC concerning fitness and nutrition programs. He received numerous silver stars and never received a demerit prior the incident and investigation in 2005 that led to his court-martial.

To his classmates, teachers, and coaches Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.

Webster Smith had dared to dream some big dreams. Like Alex Haley he had dared to believe that he could rise in the USCG to the highest level to which his talents and initiative could take him.

His parents were middle class African Americans. His father, Cleon Smith, was a graduate of the Coast Guard Academy in the Class of 1978 along with Vice Admiral Manson K. Brown.

His mother, Belinda Ingram Smith, believed in God and a good education. After attending college at WSSU for four years she went on to become the first Black female Crime Scene Investigator in the history of the Winston-Salem police Department.

This unbelievable turn about in what had been a Black success story is a singularly American tragedy.

That a cadet so deeply respected and loved by his coaches and classmates could evoke such an outpouring of hate and anger from the senior officers at the Coast Guard Academy is a Coast Guard tragedy and an American tragedy.

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 for his girlfriend. 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 the Webster Smith 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. (Read more at http://judgelondonsteverson.com)

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.

Is it wrong for Black people to ask if there is a double standard? Would that amount to paranoia on the part of Black people? Or would that be considered playing the race card simply to inquire? Is it absurd to believe that anything more than pure chance resulted in the court-martial of Webster Smith? The fact that he was court-martialed speaks to a social reality that African-Americans are acutely aware of in America. Race is not a card to be dealt, but it determines whom the dealer is and who gets dealt a losing hand.

According to a 2008 General Accounting Office Report, from 2003 to 2006 there were NO sexual-harassment complaints at the Coast Guard Academy, but there were 12 incidents of sexual assault reported to the Coast Guard Investigative Service (CGIS), with one incident in 2003, one in 2004, “NONE” in 2005 and 10 in 2006. It is hard to conceive of the facts relied upon by, Captain Douglas Wisniewski, the Commandant Of Cadets when he asserted in 2005 that there was a climate of fear of sexual assault in Chase Hall.

The 10 incidents reported in 2006 would appear to have occurred after the Webster Smith court-martial. Webster Smith was removed from Chase Hall in 2005. Who was doing all of the sexual assaulting in 2006? Why were none of these people brought to justice? They could have been tried along with Webster Smith.

The U.S. Supreme Court 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) became the final decision in the case.

Thirteen female cadets and 11 males at the U.S. Coast Guard Academy (CGA) reported anonymously in an April 2008 survey that they experienced “unwanted sexual contact,” ranging from touching to forced sexual acts, during the 2007-08 school year.

More than three-quarters said that alcohol or drugs were involved and that the offender was a fellow cadet.
None of the women sought professional help and only 7 percent discussed the incident with authorities.

When Alexander Hamilton organized the Revenue Cutter Service in 1790 it was established in the Department of the Treasury. Later it became known as the Coast Guard. In 1966 it was placed in the Department of Transportation. Today it is the nucleus of the Department of Homeland Security. Webster Smith’s case is currently being reviewed for clemency by the Secretary of the Department of Home Land Security, Janet Napolitano.

Webster Smith would have made an excellent military officer. It is Webster Smith and people like him that I want on the wall as our last line of defense for our American way of life protecting us from the great unwashed horde that is coming. Secretary Napolitano who do you want on that wall?
(Read more at http://judgelondonsteverson.com)

CONDUCT UNBECOMING an Officer and a Lady: A Case That Will Live In Infamy. The Conviction of Webster Smith. by Judge London Steverson

My rating: 4 of 5 stars

The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.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 on trial. Everything that we profess to stand for as Americans was on trial. I am ashamed of our justice system. This was a tragedy and a travesty.

I wanted to know why Webster Smith was court-martialed? Now I know. This book is the full story.

AND THEN AN AMAZON LINK: Amazon.com
Tell me how it is. I am too focused to remember yesterday.

May 13th, 2011 Posted by Lindsey | Dear Mr. President | no comments

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