Posts Tagged With: military justice

The Case of Cadet Webster Smith, The Last Word

WebsterSmithBookCoverPreview.do

http://www.amazon.com/Case-Cadet-Webster-Smith-Last/dp/1533400806/ref=asap_bc?ie=UTF8

 

Synopsis:

 

We, as Americans, cherish fairness. We like to believe that people are not punished or unjustly rewarded without justifiable cause. We like to dwell on parables of white virtue and black advancement culminating in the flowering of goodwill all around. Events sometimes force us to widen our gaze and focus on terrain we would rather not see. The 2006 court-martial of Cadet Webster Smith at the United States Coast Guard Academy did just that. 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.

Webster Smith availed himself of every path to justice that we have. He filed an Article 138 Complaint under the UCMJ. He faced the Article 32 Investigation with two lawyers. He asserted all of his Constitutional Criminal Guarantees. He knew and made appropriate use of the Right to Counsel, the Right to Remain Silent, the right to a jury trial, the Right to Confront the witnesses against him, the right call witnesses on his behalf, the right to present evidence favorable to him, the presumption of innocence until his guilt was proven beyond a reasonable doubt, and the right to argue his case before the Jury.

His Appellate Counsel, Ronald Machen, was top notch. He became the United States Attorney for the District of Columbia. In April 2015, he left the position and returned to the law firm WilmerHale.  Wilmer Cutler Pickering Hale and Dorr®  has played a leading role in historic events and landmark cases that have shaped the nation and left their mark across the globe. In matters ranging from the Army-McCarthy hearings to the legal defense of civil rights, from the 9/11 Commission to the restoration of the rule of law in apartheid-torn South Africa, their lawyers have made contributions that have profoundly affected our society. Because the law is still a profession as well as a business, lawyers have special obligations to the administration of justice and the development of the law. Their lawyers are  encouraged to meet these obligations through pro bono work. Attorney Machen represented Webster Smith on a pro bono basis. He received no fee.

Webster Smith appealed his conviction all the way to the United States Supreme Court. He lost at the Coast Guard Court of Criminal Appeals. He lost at the Court Of Appeals for the Armed Forces of the United States. The U. S. Supreme Court dismissed his appeal without comment. And, on top of the aforesaid, he filed a Complaint of Discrimination, pursuant to Commandant Instruction 5350.11. He had an air tight and fool proof case of disparate treatment. Yet, he lost. He lost because the System was manned by the most incompetent people God ever created. They did not have a clue as to what was going on in their office. The most significant case in the history of the Department of Homeland Security and the Armed Forces of America came to them and they were not capable of processing it properly.

On top of everything else, Webster Smith had bad luck. At some juncture along the way, most other people would have won, but not Webster Smith. One has to wonder why. There are some who will say that it was because he was Black. They will say that the System was designed and administered by white men and women; and, no Black man can obtain justice in that System. They might have a point, even though some of the decisions made concerning his case were made by Black people in key offices.

We now see that there is little or no justice in military justice. Any reasonable person who looks at this case or any other high profile military justice case would have to conclude that the Military Justice System is not designed to render justice. It is a system designed to punish. The entire courts-martial system, from Summary Court-martial to General Court-martial, has one specific purpose; that is to punish anyone who commits an offense against the Uniform Code of Military Justice.

This is intended to be the definitive word on the first and only court-martial of a United States Coast Guard Academy cadet. The Case of Cadet Webster Smith, The Last Word is written from the perspective of the accused, Cadet First Class Webster Smith. It is not written from the perspective of his accusers. A prior account of this case focused on the women involved. Conduct Unbecoming an Officer and a Lady told the story of the court-martial from the perspective of the witnesses for the prosecution.

Why now? Well, there are several reasons. This Case is unique in that this has never happened before. No other Coast Guard Academy Cadet has ever been punished at a General Courts-martial. That is saying a lot for an institution that has been around since 1876.

Also, it has been ten years since the trial and conviction. An entire decade has passed. The sentence has been served. The Supreme Court Petition for A Writ of Certiorari has been denied. The Record is complete.

Cadet Smith was a senior when the trial began. He was within months of graduating from the Academy, but he was expelled. No Clemency was granted. His career was ruined. His life was irreparably harmed. For ten years he was required to register in the State of Texas as a Sexual offender. He married, had children, and for ten years he was not allowed to attend the birthday parties of his children.

This Case has been hotly debated in certain quarters. The Coast Guard has tried its best to forget that this court-martial ever occurred. However, I fear that this Case will be debated and talked about for years to come. Long after the political and social climates that gave rise to this Case have abated; cadets, officers, politicians and parents will be discussing the Webster Smith Case.

What distinguishes this book from other books on the Case is that this book distinguishes how the Coast Guard Legal Officers and the senior Academy officers disposed of this case as opposed to other cases with similar fact patterns. This Case will serve as a witness to an era in the United States Military and its Service Academies that was ripe with cultural and ethical upheavals, proceedings with plenty of due process and little justice, sexual assaults in the military, retaliation against whistleblowers, mind blowing results, aggravation and frustration. 

The Case of Cadet Webster Smith, The Last Word

Title ID: 6293877

ISBN-13: 978-1533400802

 

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The Case of Cadet Webster Smith, The Last Word

Unrestricted Coast Guard Chronicles Vol 02 Nr 01

BY_AUTHOR Judge London Steverson

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ISBN-13: 978-1533400802

6″ x 9″ on WHITE Paper

(198 pages, Black & White)

15.24 x 22.86 cm

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Interior: The Case of Cadet Webster Smith, The Last Word – updated version edited 2- formatted15Apr11.docx

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Cover Finish: Glossy

Cover: cover-creator.pdf

 

The Case of Cadet Webster Smith, The Last Word

Title ID: 6293877

ISBN-13: 978-1533400802

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Top Gun Pilot Shot Down By His Wing Man

“Top Gun” Pilot Shot Down For Allowing Sexy Talk. 

Thinking a Congresswoman is attractive leads to disciplinary action if reduced to writing in an E-mail.

Loose Lips Sink Ships (In this case air ships). Sexually Explicit Speech Can Not Be Tolerated In This New Openly Gay Military.

Navy reassigns ex-Blue Angels commander after complaint he allowed sexual harassment.

SSgt Ryan Crane/US Air Force – Capt. Greg McWherter, right, then the Blue Angels flight leader, speaks with Col. Mike Hornitschek.

 

 

The Navy has reassigned a former commander of the Blue Angels, its acrobatic fighter squadron, and is investigating allegations that the elite team of pilots was a hotbed of hazing, sexual harassment and other forms of discrimination, documents show.
The Navy announced Friday that it had relieved Capt. Gregory McWherter, a two-time commander of the Blue Angels, of duty for alleged misconduct. At the time, the Navy did not describe the nature of the accusations or provide other details except to say that the case remained under investigation.

 

 

But an internal military document that a Navy official inadvertently e-mailed to a Washington Post editor states that a former member of the Blue Angels filed a complaint last month accusing McWherter of promoting a hostile work environment and tolerating sexual harassment. The complaint described an atmosphere rife with sexually explicit speech, the open display of pornography and jokes about sexual orientation.

The Navy officer is the latest in a string of senior military commanders to come under investigation for sexual misconduct or other misbehavior. Congress and the White House have grown especially frustrated at the Pentagon’s struggles to police sex crimes and harassment in the ranks.

The Navy appeared to move swiftly after the former Blue Angels member filed the complaint March 24 with the Navy inspector general. The complaint alleged that McWherter encouraged or allowed sexual harassment and lewd activity to occur when he commanded the Blue Angels during two stints between 2008 and 2012.

McWherter did not respond to e-mails seeking comment. The Navy confirmed the circumstances that led to the probe. The Navy also released a statement from Vice Adm. David H. Buss, the commander of Naval Air Forces, who said, “We remain fully committed to accountability, transparency, and protecting the integrity of ongoing investigations.”

According to McWherter’s biography, which the Navy has removed from a public Web site, he is an alumnus of the Citadel and graduated from the Navy’s famous “Top Gun” fighter pilot school in 1995.

The Blue Angels are a flight demonstration team that performs daring maneuvers at air shows and before large crowds at other public events. It is a major honor for pilots selected to join; the Navy treats the squadron as a valuable recruitment tool and a vivid symbol of its aviation firepower.

The commander of the unit is chosen by a panel of admirals and serves as the Blue Angels’ lead pilot.

Although the investigation has not been completed, Navy officials decided that the preliminary findings warranted taking action. McWherter was fired from his new job as executive officer of Naval Base Coronado near San Diego. He has been temporarily reassigned to other duties.

Summaries of the complaint and investigation are contained in a five-page internal document, labeled “official use only,” that was drafted by Navy public affairs officers in anticipation of media coverage.

The document included talking points and prepared quotes attributed to Navy admirals, expressing concern about the gravity of the case. The material was being assembled in the event that further details of the investigation became public.

McWherter was a commander highly regarded by many in the Navy. He was brought back to lead the Blue Angels for a second stint in 2011 after the unit was temporarily grounded that year for performing a dangerous barrel roll too close to the ground during a show in Lynchburg, Va.

Upon leaving the team in November 2012, he told the Pensacola (Fla.) News Journal that he had no regrets.

“If being with the Blue Angels was the last time I fly a Navy plane, that’s a pretty good way to go out,” he said.

In the face of several ethics scandals over the past 18 months, the Pentagon has repeatedly pledged to hold commanders accountable for their actions. At the same time, however, the military has tried to suppress details about many embarrassing episodes.

For example, the Army announced in June, without elaboration, that it had suspended its top general in Japan for allegedly mishandling a sexual assault case. On Tuesday, after obtaining a copy of the investigative report under the Freedom of Information Act, The Post disclosed that the general was given a plum job at the Pentagon even though he had violated regulations by failing to refer the sexual assault complaint to criminal investigators.

In January, after obtaining another batch of investigative documents, it was reported that the Pentagon had disciplined three other generals for personal misconduct.

One was found guilty of assaulting his mistress. A second joked in e-mails that he sexually gratified himself after meeting a member of Congress whom he described as “smoking hot.” The third kept a bottle of vodka in his desk and was investigated for having an affair, according to the documents.

At the same time, it appears that some military leaders have become highly sensitive to the issue and are quick to launch investigations at any hint of sexual impropriety or ethical misbehavior in the ranks.

In February, the Army announced it had suspended a brigade commander at Fort Carson, Colo., and in a highly unusual move, would not allow him to deploy with his soldiers to Afghanistan. Again, Army officials did not divulge what had prompted the decision.

A copy of the investigative report in that case, however, shows that the commander was suspended after three female soldiers alleged that he had made insensitive comments during a meeting to discuss sexual assault policies.

The commander, Col. Brian Pearl, was later cleared of wrongdoing and allowed to join his troops in Afghanistan. A copy of the investigative report was first obtained and published Tuesday by the Gazette newspaper of Colorado Springs.

 

(By Craig Whitlock)

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A Case Too Weak For A Court-martial

 

Cadet Alexander Stevens is a cadet at the U.S. Coast Guard Academy (USCGA). He is accused of breaking into the room of a female cadet of lower rank in Chase Hall and sexually abusing her.

On or about April 4, an anonymous person of great intellect and enormous insight left the following comment on my blob at cgachasehall.blogspot.com. I was so impressed by it that I reproduce it here without alteration or editing.

QUOTE:

This is not a case of sexual assault; the evidence presented by the government failed to prove anything more than the fact that there is a systemic problem of alcohol abuse and confusion over dorm room locations running rampant at the USCGA. Multiple witnesses confirmed the events of the night as purported by Cadet Stevens. Moreover, they confirmed that it is a too-frequent occurrence for over-intoxicated cadets to return to Chase Hall and accidentally walk into the wrong room. The alleged victim’s own roommate testified to that fact without reservation.

Doors have locks, the roommate also confirmed, but cadets are not permitted keys; only the XO has a master key to unlock doors. The only way a cadet could secure his/her room is when all occupants are safely inside. This is surely a contributor to issues of unspeakable theft, vandalism and abuse current and former cadets can tell.

The Article 32 Hearing was a manufactured event architected by someone with an agenda that goes beyond the unfortunate incident that occurred in the wee hours of September 15. Yes, Cadet Stevens was drunk and made a horrible mistake. But it was not assault and any reasonable person who looks at all of the evidence will quickly come to this conclusion. To reach any other decision is an overt decision to falsely accuse – and ruin – the character and integrity of the very same honor all cadets represent.

Admiral Stosz has issues within her ranks of leadership, character and courage; she needs to look at the culture of Chase Hall and question why cadets are abusing alcohol and questioning if the restrictive weekday rigor and lax weekend liberty — call it Feast or Famine — is modeling the lifestyle and behaviors that mold tomorrow’s Coast Guard leaders. These are far greater issues than addressing Cadet Steven’s long overdue Mast for drunkenly walking into another’s room in error.

I, for one, did not lose the irony of the drawn-out investigation culminating with a hearing that began with the start of the Coast Guard’s Sexual Prevention and Awareness Month. This is showmanship at the taxpayer’s expense, folks, and nothing more.

UNQUOTE

 

The Coast Guard prosecutor, Lt. Tyler McGill, has alleged that Cadet Stevens  was on a mission for sexual gratification that September night. The room Stevens entered was about 300 feet from his girlfriend’s room.

“Cadet Stevens did not walk into the room right next door,” McGill said.

Lt. John Cole, Cadet Stevens’ Assigned Military Defense Counsel, said the government didn’t prove sexual intent. He claims Stevens was drunk at the time and made a mental mistake.

Just because he accidentally touched the wrong cadet’s leg doesn’t mean he should go to court martial,” Cole said.

Cole argued that Stevens should face administrative punishment, which can include expulsion. Administrative punishment is not criminal in nature. Non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) is the lowest form of criminal proceeding available to the military. Above NJP there are three levels of courts-martial. They are a Summary, a Special and a General Court-matial. They differ in the maximum amount of punishment they can award to a convicted member. A court martial is a Federal Criminal Trial and can lead to prison time if the person is convicted.

The Article 32 pretrial investigation is similar to a civilian grand jury. It is used to determine wheteher there is enough evidence to refer the case to a court-martial.

A hearing in the form of an Article 32 Investigation was held  Wednesday April 2nd at the Coast Guard Academy. The Article 32 Investigating Officer (IO) has not yet made a recommendation. The IO could recommend that the case be dismissed, dealt with administratively or referred for trial by court-martial.

Usually the accused usually does not testify at an Article 32 Hearing.

Most smart Defense Counsels do not let their clients testify at an Article 32 Hearing. They use that opportunity to discover the Government’s case. They get a chance to see how much evidence the Government has and how strong it is.

Cadet Stevens, who is accused of abusive sexual contact, housebreaking and unlawful entry, did not testify.

 

The Testimony was weak.

The female complaining witness testified that a man entered her room in the middle of the night, touched her on her thigh and moved his hand up her leg before she screamed and kicked him.

“I remember someone fumbling with my blanket that was on top of me and touching my leg,” she said, describing skin-to-skin contact and the swirling motion of a hand moving up her leg. “I kicked my legs and I screamed.”

The man either fell or jumped off her bed and fled. She says she chased him and located a friend.

“I kept telling him (the friend) that’s not right,” she said, noting that she was shaking and crying.

The cadet said she found it hard to sleep and concentrate after the encounter, and her grades suffered.

“I think he should be kicked out of the Coast Guard. I think he should be a registered sex offender, and I think he should go to jail,” she said.

Cadet Stevens’ explanation Is credible and exculpatory.

Stevens said in an interview that he went into the fellow cadet’s room and touched her with his hand, said Eric Gempp, a special agent with the Coast Guard Investigative Service (CGIS). Stevens said he was startled when the cadet said, “Hey!” He quickly left the room, Stevens told investigators.

Stevens said he went into the room by mistake, believing it was his girlfriend’s room, Gempp testified.

Defense Counsel was able to get the accused’s statements into the record without him taking the witness stand.

Chief Robert Cain testified that Stevens voluntarily came to him and told him during a night of drinking he got into an argument with his girlfriend. Cain said Stevens told him after returning to his room that he decided to apologize and went to what he thought was his girlfriend’s room, tapped her on the leg and realized he was in the wrong room.

Another cadet testified that classmates often go into the wrong rooms, but said the mistake typically involves going into a room one or two doors away.

The only cadet ever court-martialed at the academy, Webster Smith, was tried in 2006 at a General Court-martial and convicted on extortion, sodomy and indecent assault charges.

 

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled “Conduct Unbecoming An Officer and a Lady” available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )

The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial.

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My Husband Is A Victim Of Flawed Civilian Command Policies

 A Wife Responds

When the strains of war lead to infidelity

By Rebecca Sinclair

Rebecca Sinclair is married to Brig. Gen. Jeffrey Sinclair, a former deputy commander of the 82nd Airborne Division in Afghanistan, who is being tried at Fort Bragg, N.C., on charges including adultery and sexual misconduct. 

 

Like most Americans, I’ve been unable to escape the current news cycle regarding several high-ranking military generals entangled in sex scandals. Unlike most Americans, however, for me the topic is personal. My husband, Brig. Gen. Jeffrey Sinclair, is one of the officers.

Spectators will try to make this scandal about many things: the arrogance of powerful men; conniving mistresses; the silent epidemic of sexual assault in the armed services. But these explanations obscure an underlying problem: the devastating influence of an open-ended war — now in its 11th year — on the families of U.S. service members.

Gallery

Video

<caption> Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs. </caption>

Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs.

 Let me first address the elephant in the room. My husband had an affair. He violated our marriage

vows and hurt me tremendously. Jeff and I are working on our marriage, but that’s our business.

Jeff also needs to answer to the Army. That is his business, not mine, and he accepts that. I believe in and support him as much as ever.
I wish I could say that my husband was the only officer or soldier who has been unfaithful. Since 2001, the stress of war has led many service members to engage in tremendously self-destructive behavior. The officer corps is plagued by leaders abandoning their families and forging new beginnings with other men and women. And many wives know about their husbands’ infidelity but stay silent.
For military wives, the options are bad and worse. Stay with an unfaithful husband and keep your family intact; or lose your husband, your family and the financial security that comes with a military salary, pension, health care and housing. Because we move so often, spouses lose years of career advancement. Some of us spend every other year as single parents. We are vulnerable emotionally and financially. Many stay silent out of necessity, not natural passivity.
In many ways, ours is a typical military story. Jeff and I married 27 years ago. While he rose through the officer corps, I earned my bachelor’s and master’s degrees and taught at community colleges in the places where we were stationed. We later had children.
Since 2001, the wars in Iraq and Afghanistan have destabilized our life. We have moved six times in 11 years. On average, our kids change schools every two years. Between five deployments, site surveys and training operations, Jeff has spent more than six of the past 10 years away from his family.
None of this is meant to excuse infidelity. I expected more of Jeff, and I think he expected more of himself. But we’re fooling ourselves if we don’t recognize the larger reality. My friends who are married to other combat leaders have been my anchor during this crisis. We understand that our soldiers may come home disfigured or injured in such a way that we will become lifelong caregivers. We also understand that they may not come home at all, and if blessed with a reunion, they may carry emotional baggage few could understand. My friends know that it could have been their heartbreak as much as mine. This is the only time in U.S. history that our nation has fought a decade-long war with a volunteer Army. Doing so has consequences. Nothing good can come of families being chronically separated for a decade or more.
Jeff’s case has its own complications. He was involved with a woman who confessed to a superior officer. As a servicewoman, she stood to be charged with criminal conduct under the military code of justice. She alleged sexual assault, and no such allegation should ever go unanswered. We are confident that the charges will be dropped. Hundreds of text messages and journal entries came to light in pretrial hearings last week that establish the affair was consensual. The woman in question admitted under oath that she never intended to have Jeff charged, and Jeff has passed a polygraph test. Ironically, if Jeff had decided to leave his family he would be in the clear.
There are many accusations against Jeff, some of which have already fallen apart. Jeff has been charged with possessing alcohol in a combat zone; a visiting dignitary gave him a bottle of Scotch that remained unopened on a bookshelf. 
 His personal computer was used to access pornography; time stamps and Army records show that he was out of the country or city when most of the files were downloaded. We expect those charges, too, to be dismissed.
But the damage has been done. It will take years for Jeff to shed the false image of a hard-drinking, porn-dependent aggressor. The other generals will also struggle to rehabilitate reputations they spent decades building. All of these men are human beings, with strengths and fallibilities, and they have families who are under real strain. How we address this strain will say much about what kind of country we are; it will also determine how stable and strong our military is.
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Travesty? Mockery? Justice? Was It Worth It?

 (Brig Gen. Jeff Sinclair as he arrives to the Fort Bragg courthouse, for his sentencing hearing, Wednesday, March 19, 2014, in Fort Bragg, N.C. Sinclair, who was accused of sexually assaulting a subordinate, plead guilty to lesser charges in a plea deal reached with government prosecutors.)

Disgraced Army general, Jeffrey A. Sinclair, gets $20,000 fine, no jail time.

 (FORT BRAGG, NC – MARCH 17: Brig. Gen. Jeffrey Sinclair leaves the Fort Bragg Courthouse after sexual assault charges against him were dropped after he plead to lesser charges March 17, 2014 in Fort Bragg, North Carolina. Sinclair, a former deputy commander with the 82nd Airborne Division, has admitted to an extramarital affair with a junior officer. “Unlawful command influence” caused a delay in the trial last week.) (Photo by Davis Turner/Getty Images)

 

Army Brig. Gen. Jeffrey Sinclair carried on a three-year affair with a captain and had two other inappropriate relationships with subordinates. He was reprimanded and fined $20,000 in pay. He will not serve any jail time.

 

 Coast Guard Academy Cadet Webster Smith had consensual sex with a confidant and girl friend; he received six months jail time and a bad conduct discharge. Is it fair? Is that what we call “equal protection of the law”? It was an American Tragedy. It was a mockery of justice. It was a case that will live in infamy. It was a travesty!

(Read all about The Webster Smith Case at http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021/ref=la_B006WQKFJM_1_1?s=books&amp;ie=UTF8&amp;qid=1395709342&amp;sr=1-1)

Admiral Thad W. Allen, Commandant of the Coast Guard, speaking at the Academy on 8 September 2006 did not mention the Webster Smith Case. But, talking with reporters afterward, Allen said THE PROCESS used to deal with the issue worked as it should.

Apparently, Commandant Allen did not know that the System was stalled. He did not seem to be aware that his fellow Admiral, the Superintendent, was stonewalling the System.

(Read more at http://cgachasehall.blogspot.com/2006/10/admiral-van-sice-has-no-respect-for.html)

 

 

 

 

 Army Brig. Gen. Jeffrey Sinclair admitted carrying on a prolonged, turbulent affair with an officer under his direct command and having improper relationships with two other women was reprimanded and fined $20,000 by a military judge Thursday March 20th.
To his visible relief, however, Brig. Gen. Jeffrey A. Sinclair was spared a jail sentence. The decorated combat veteran hugged his lawyers and friends after his sentence was imposed by Col. James Pohl, the military judge who oversaw his court-martial at Fort Bragg, N.C.

 

The system worked. I’ve always been proud of my Army,” Sinclair told reporters. “All I want to do now is go north and hug my kids and wife.”

 

 

Yes, the System worked. That sounds awfully like what Admiral Thad Allen said about the court-martial of Cadet Webster Smith when he was interviewed at the United states Coast Guard Academy after the first court-martial of a cadet in Coast Guard history.
The big question is “for whom’? For whom did the System work? It works a lot better for some than for others.
The Defense Department’s failure so far to change the military’s male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

(Senator Kirsten Gilllibrand, D-N.Y.)
Tinkering at the edges, they argue, won’t produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won’t be discounted and they won’t face retaliation.

For two years, Sinclair’s court-martial had made him the public face of the military’s struggle to prevent and police sexual misconduct in the ranks. He was only the third Army general to face court-martial in 60 years, a measure that critics called emblematic of the military’s reluctance to hold senior commanders accountable for all kinds of wrongdoing.
Although Sinclair was pleased with the outcome, his chief accuser and some advocacy groups for sex-crime victims expressed deep disappointment. Rep. Jackie Speier (D-Calif.) called the sentence “a mockery of military justice” and a “laughable punishment.
Sinclair was originally charged with crimes that could have landed him in prison for life.
His accuser, a much younger female captain who served on his staffs in Iraq and Afghanistan, reported in March 2012 that she had been the married general’s lover for three years. She also said that he had sexually assaulted her on two occasions and once threatened to kill her and her family if she told anyone about the affair.
The Army prosecuted Sinclair for those offenses for nearly two years, but suddenly dropped the charges this month and cut a plea deal with the general after prosecutors admitted they had doubts about the reliability of the general’s mistress. Their hand was also forced after the judge ruled that there was evidence the Army had allowed politics and external considerations to influence its handling of the case.
In the end, Sinclair pleaded guilty to adultery, maltreatment of his accuser and two other improper relationships. He also admitted to making derogatory comments about women and, when challenged by his staff, replying: “I’m a general, I’ll say whatever the [expletive] I want.”
The accuser’s attorney, Jamie Barnett, a retired Navy rear admiral, said she was “obviously devastated” that Sinclair’s sentence wasn’t more severe.
“It’s a terrible outcome, and by failing to render justice today, the Army’s going to face the reality that this could happen again,” said Barnett, now a lawyer in private practice. “It’s really beyond disappointing. It’s a travesty for the Army and military justice in general.”

Coincidentally, Sinclair was sentenced on the same day that another high-profile sexual assault prosecution in the military collapsed.
In that case, a military judge at the Washington Navy Yard found a former Navy football player not guilty of sexually assaulting a female classmate at an April 2012 party. The Navy had originally charged two other midshipmen in the same incident but later cleared both as the case slowly crumbled.
In the past, military leaders have been criticized for not taking sex abuse allegations seriously and for mistreating victims. But in the courts-martial that culminated Thursday, the evidence of sexual assault rested largely on the testimony of the accusers, both of whom struggled to give a consistent and clear account.
Advocacy groups for sexual-assault victims were quick to seize on the outcomes as another sign that the military justice system is ill-equipped to handle such cases.
Nancy Parrish, the president of Protect our Defenders, said the results would discourage other members of the military from coming forward to report sex crimes.
“The military’s promises of ‘zero tolerance’ for sexual offenses continues to ring hollow as yet another high ranking official is let off the hook,” she said of the Sinclair case. “It has been long known within the military that General Sinclair conducted himself in outrageous and inappropriate, even unlawful ways. His behavior was not addressed until this victim came forward.”
Sinclair’s attorney, Richard Scheff, retorted that people who thought the general got away with a light sentence were ignoring the facts. “Critics of this ruling who weren’t in court and haven’t seen the evidence have no idea what they’re talking about.”
Sinclair admitted the affair but vigorously denied assaulting or threatening the woman. His lawyers portrayed her as a jealous mistress who spoke out after she read suggestive e-mails he had sent to other women, and because he refused to divorce his wife.
He could be punished further financially. His attorneys have said they expect he will have to retire from the Army at a lower rank, which would diminish his pension benefits.
Rear Adm. John Kirby, the Pentagon’s chief spokesman, declined to comment on Sinclair’s sentence. But he acknowledged that the military needed to do more to deter and prosecute sex crimes.
We know we need to get better. We know that there are changes that need to continue to be made,” Kirby told reporters. “Our focus is on making sure victims have the confidence to report and that those who are proven guilty of a crime are held accountable.”

(By Craig Whitlock. Ernesto Londoño contributed.)

APPENDIX I. Background on the handling of this case.

FORT BRAGG, N.C. — It was an illicit and volatile love affair that spanned two war zones and four countries. The married general couldn’t stay away from a captain on his staff. She fell hard for her boss and called him “Poppa Panda Sexy Pants.” The three-year entanglement ended disastrously for both, at a time that could not be worse for the Army.
All the raw and sordid details are spilling out in an austere military courthouse here, where the Army is girding — for only the third time in half a century — to court-martial one of its generals.

(Uncredited/AP) – Brig. Gen. Jeffrey A. Sinclair faces court martial on charges that include forcible sodomy and adultery.

Video

<caption> Brigadier General Jeffrey Sinclair is accused of sexually assaulting a female captain and inappropriately communicating with three others. </caption>

Brigadier General Jeffrey Sinclair is accused of sexually assaulting a female captain and inappropriately communicating with three others.

 

Brig. Gen. Jeffrey A. Sinclair, an Army Ranger and paratrooper, stands accused of forcible sodomy, adultery and other charges that could land him in prison. Prosecutors say he abused his command authority by sleeping with a subordinate officer, a taboo in the armed forces and a violation of military law.
They charge that the relationship turned violent on two occasions, when he allegedly forced her to perform oral sex.
In addition, Sinclair faces charges that he had inappropriate communications with three other female officers.
Sinclair has pleaded not guilty to all charges. Besides the rare spectacle of a general in the dock, however, the case poses a critical test of how the U.S. military handles allegations of sexual assault and misconduct, crimes that have long bedeviled the armed forces.
Congress and President Obama have demanded a crackdown, alarmed by a recent string of scandals and frank admissions by military leaders that they have systematically failed to address the problem.
A growing faction of lawmakers is pushing to rewrite the underpinnings of military law by giving power to uniformed prosecutors, instead of commanders, to oversee investigations of sexual abuse and other serious crimes. The Pentagon is resisting, arguing that commanders must retain the authority to enforce order and discipline in their units.
The last Army general to face court-martial was Brig. Gen. Roger B. Duff, who pleaded guilty in June 2012 to making false official statements and wearing unauthorized decorations. The Army did not publicly disclose that Duff had been court-martialed until months later, when Sinclair was charged.
In 1999, Maj. Gen. David R.E. Hale pleaded guilty at court-
martial after he was accused of committing adultery with the wives of four subordinates. He was fined and demoted. Before that, no Army general had faced court-martial since 1952, when Maj. Gen. Robert W. Grow, a military attache in Moscow, was suspended and reprimanded on charges of dereliction of duty.
Given the intense debate in Congress over possible far-reaching changes to military law, all sides are intently watching how Sinclair’s court-martial plays out. It is scheduled to begin Sept. 30 after months of evidentiary hearings and pretrial wranglings that have foreshadowed what is at stake.
Last week, the Army finished selecting a jury of five major generals, all men, who will determine Sinclair’s fate. Under military law, each juror must be senior in rank to the defendant. More than 40 generals were summoned to Fort Bragg from around the world to be interviewed. Most were rejected because they knew Sinclair or other key potential witnesses.
During jury selection, lawyers for both sides acknowledged the heavy political pressures swirling around the case.
They asked the potential jurors if they were worried that they might be passed over for promotion if they reached an unpopular verdict. They also questioned whether the generals could resist outside influences, such as Obama’s angry comments in May, when he demanded that military sex abusers be “prosecuted, stripped out of their positions, court-martialed, fired, dishonorably discharged — period.”
Virtually all the generals said that sexual assault is a serious problem in the ranks and that they had previously heard about the charges against Sinclair. One revealed that he had attended an Army-mandated training session on sexual assault prevention in which Sinclair was depicted as a case study in bad behavior.
Another commander, Maj. Gen. Kendall W. Penn of the 1st Army, candidly recalled what he thought when he first read news accounts of the case. “My general reaction was, this is going to be a black eye on the Army,” he said. He was later culled from the jury pool.
Retired Maj. Gen. Charles J. Dunlap Jr., a Duke University law professor and a former deputy judge advocate general for the Air Force, said the atmosphere surrounding sexual assault cases in the military has become “hyper-politicized.”
He said that Sinclair could receive a fair trial but that the five jurors will have to “exercise moral courage in a way they’ve perhaps never been asked to do before in a military justice setting.”

Final straw
Although Sinclair has pleaded not guilty, his attorneys acknowledge that he carried on an affair with a subordinate officer 17 years his junior. The Washington Post generally does not name alleged sex-crime victims.
During a pretrial hearing last year, the woman testified that the pair had sex in the general’s quarters in Iraq, in her car in a German parking lot, in plain sight on a hotel balcony in Arizona and in her cramped office in Afghanistan, among other places. Some soldiers wondered and snickered about their relationship, but nobody reported it.
The depth of their passion might have remained hidden if the general and the captain hadn’t bombarded each other with explicit text messages. Defense attorneys have read many out loud in court.
“You are my heart and world you beautiful magnificent man,” the captain texted the general in September 2011, during one of their tamer exchanges. “I need you and I mean really deeply profusely need you.”
Many of the text messages betray a dark side to the affair — angry accusations from the unmarried captain, as well as threats to kill herself or expose the affair to Sinclair’s superiors. During an evidentiary hearing at Fort Bragg, she testified that they fought continually but usually made up afterward.
“You are going to make me do something really stupid,” she wrote early last year in a typo-filled text. “How about I just [expletive] call [Sinclair’s commander] and have him resolve this, Im sure he will take the time to keep me from being suicidal. I well not let yoy continue to screw me over.”
The final straw came in Kandahar, Afghanistan, in March 2012. The captain was snooping through Sinclair’s e-mail in his office and discovered tender messages to his wife, as well as love notes to another female Army officer.
“I felt so stupid,” the captain testified. “I finally had something to slap me in the face and say, ‘See, he never loved you. He was just using you for sex.’ ”
By her own admission, she flew into a jealous rage. First, she fired off an e-mail to the other female officer, saying, “I hope you don’t think you’re the only girl that he’s sleeping with.”
Later that night, she burst into the office of Maj. Gen. James L. Huggins, then the commander of the 82nd Airborne Division and leader of all U.S. forces in southern Afghanistan. Tears streaming down her face, she spent two hours confessing to the affair, according to court testimony.
That set off a flurry of phone calls and e-mails among senior Army brass, who were stunned but immediately ordered a full investigation that eventually roped in more than 100 witnesses.
The case grew more serious when the captain gave a formal statement accusing Sinclair of sexual assault by forcing her to perform oral sex against her will on two occasions in Afghanistan.
She also asserted that he had once vowed to kill her and harm her family if she ever told his wife about the affair. Sinclair’s attorneys deny that he made the threat.

‘It’s tearing me up’
The Army charged Sinclair with forcible sodomy because of the oral sex allegations. The captain testified that the assaults occurred between December 2011 and February 2012 but said she cannot recall the exact dates.
During an evidentiary hearing in November, she said that she still had feelings for Sinclair and that she had not wanted the Army to charge him with forcible sodomy or a violent crime.
“It’s tearing me up, and in a [expletive] way I still love him, and I don’t want him to be upset with me,” she said. “I know it’s very messed up, but there’s a part of me that wants to believe that he really did love me and that I just misinterpreted his actions.”
Defense attorneys have accused her of making up the assault allegations to save her Army career. They said she first told one confidant that the relationship was entirely consensual but gave investigators a different version after she realized that she, too, could be kicked out of the Army for adultery.
Richard L. Scheff, an attorney for Sinclair, noted that the woman has since been granted immunity by the prosecution. “The evidence in this case is paper-thin,” he said. The captain, he said, has “changed her story again and again.”
Legal representatives for the woman did not respond to a request for comment placed through Army public affairs officials at Fort Bragg.
In an unusual move in the button-down world of military justice, Sinclair has hired four civilian defense lawyers and a national public relations firm, MWW Group. They have created a Web site — sinclairinnocence.com — to dissect the case and challenge the Army.
In an interview, Scheff said the Army “grossly overcharged” his client. Given Washington’s marching orders to the military to get tough on sexual assault, he said, he doubts that any jury could render a fair verdict for Sinclair.
“They’re in the spotlight on this,” he said. “They’re under such enormous pressure to change the culture on sexual assault.”
A Fort Bragg spokeswoman said prosecutors are not permitted to comment on a pending case.

‘It’s draining’
Sinclair also is charged with having inappropriate relations with three other female junior officers.
In combing through his e-mails, investigators found nude photos and flirtatious messages from two of the women but no evidence that he had sex with them. One of those officers testified that she repeatedly avoided meeting him in person, however, because she assumed he wanted to have a tryst.
At the same time, each of the three female officers testified that they admired Sinclair, considered him a mentor and didn’t want to cut off contact. Instead, they frequently sought out the general for career advice and professional favors.
In November, Sinclair’s wife, Rebecca, stunned many in the Army when she wrote an op-ed column in The Washington Post to declare that she was sticking by her husband and that she blamed his infidelity on “the stress of war.”
In an interview this month, Rebecca Sinclair said her husband may be a cheater but not a violent abuser. “I don’t excuse my husband’s bad behavior or bad judgment,” she said. “I never said it’s okay. I said I understand how it could happen.”
Although she has not attended most of the court proceedings, she said she’s still living with the general. “We’re doing the best we can,” she said. “It’s draining.”
 

APPENDIX II  

A Wife Responds

Why I Stand By My Man

When the strains of war lead to infidelity

By Rebecca Sinclair, Published: November 15, 2012

 

 

Rebecca Sinclair is married to Brig. Gen. Jeffrey Sinclair, a former deputy commander of the 82nd Airborne Division in Afghanistan, who is being tried at Fort Bragg, N.C., on charges including adultery and sexual misconduct.

Like most Americans, I’ve been unable to escape the current news cycle regarding several high-ranking military generals entangled in sex scandals. Unlike most Americans, however, for me the topic is personal. My husband, Brig. Gen. Jeffrey Sinclair, is one of the officers.
Spectators will try to make this scandal about many things: the arrogance of powerful men; conniving mistresses; the silent epidemic of sexual assault in the armed services. But these explanations obscure an underlying problem: the devastating influence of an open-ended war — now in its 11th year — on the families of U.S. service members.

 

Gallery

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<caption> Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs. </caption>

Ann Telnaes cartoon: Petreaus case reveals reach of nation’s surveillance programs.

 

 

 

Let me first address the elephant in the room. My husband had an affair. He violated our marriage vows and hurt me tremendously. Jeff and I are working on our marriage, but that’s our business.
Jeff also needs to answer to the Army. That is his business, not mine, and he accepts that. I believe in and support him as much as ever.
I wish I could say that my husband was the only officer or soldier who has been unfaithful. Since 2001, the stress of war has led many service members to engage in tremendously self-destructive behavior. The officer corps is plagued by leaders abandoning their families and forging new beginnings with other men and women. And many wives know about their husbands’ infidelity but stay silent.
For military wives, the options are bad and worse. Stay with an unfaithful husband and keep your family intact; or lose your husband, your family and the financial security that comes with a military salary, pension, health care and housing. Because we move so often, spouses lose years of career advancement. Some of us spend every other year as single parents. We are vulnerable emotionally and financially. Many stay silent out of necessity, not natural passivity.
In many ways, ours is a typical military story. Jeff and I married 27 years ago. While he rose through the officer corps, I earned my bachelor’s and master’s degrees and taught at community colleges in the places where we were stationed. We later had children.
Since 2001, the wars in Iraq and Afghanistan have destabilized our life. We have moved six times in 11 years. On average, our kids change schools every two years. Between five deployments, site surveys and training operations, Jeff has spent more than six of the past 10 years away from his family.
None of this is meant to excuse infidelity. I expected more of Jeff, and I think he expected more of himself. But we’re fooling ourselves if we don’t recognize the larger reality. My friends who are married to other combat leaders have been my anchor during this crisis. We understand that our soldiers may come home disfigured or injured in such a way that we will become lifelong caregivers. We also understand that they may not come home at all, and if blessed with a reunion, they may carry emotional baggage few could understand. My friends know that it could have been their heartbreak as much as mine. This is the only time in U.S. history that our nation has fought a decade-long war with a volunteer Army. Doing so has consequences. Nothing good can come of families being chronically separated for a decade or more.
Jeff’s case has its own complications. He was involved with a woman who confessed to a superior officer. As a servicewoman, she stood to be charged with criminal conduct under the military code of justice. She alleged sexual assault, and no such allegation should ever go unanswered. We are confident that the charges will be dropped. Hundreds of text messages and journal entries came to light in pretrial hearings last week that establish the affair was consensual. The woman in question admitted under oath that she never intended to have Jeff charged, and Jeff has passed a polygraph test. Ironically, if Jeff had decided to leave his family he would be in the clear.
There are many accusations against Jeff, some of which have already fallen apart. Jeff has been charged with possessing alcohol in a combat zone; a visiting dignitary gave him a bottle of Scotch that remained unopened on a bookshelf. His personal computer was used to access pornography; time stamps and Army records show that he was out of the country or city when most of the files were downloaded. We expect those charges, too, to be dismissed.
But the damage has been done. It will take years for Jeff to shed the false image of a hard-drinking, porn-dependent aggressor. The other generals will also struggle to rehabilitate reputations they spent decades building. All of these men are human beings, with strengths and fallibilities, and they have families who are under real strain. How we address this strain will say much about what kind of country we are; it will also determine how stable and strong our military is.

 

Categories: Military Justice | Tags: , , , , , , | 1 Comment

More Coast Guard Cadets Under Investigation For Sexual Misconduct

New London — A cadet at the U.S. Coast Guard Academy (USCGA) is accused of breaking into a dorm room and sexually abusing another cadet.

An Academy spokesman said the alleged incident occurred in mid-September in the Chase Hall barracks.

The accused cadet is suspected of violating Articles 120, 130 and 134 of the Uniform Code of Military Justice (UCMJ), the military’s criminal code, which prohibit abusive sexual contact, housebreaking and unlawful entry. The charges were preferred, or formally initiated, and then served to the accused on Monday, February 3, 2014. (See below for specific elements of the offenses.)

A military attorney, or judge advocate general, will now conduct an Article 32 investigation to determine whether there is enough evidence to warrant a court-martial.

The Academy would not identify the gender of either cadet involved. Capt. Eric C. Jones, the academy’s assistant superintendent, said that while Article 120 includes rape, in this case, “the alleged offense is not rape.”

The academy is sending the accused off campus to work at another Coast Guard unit while the process moves forward, Jones said in an interview Tuesday, February 4. The alleged victim is taking classes and using the support services on campus.

Rear Adm. Sandra L. Stosz, the academy superintendent, decided to proceed with the Article 32 investigation, Jones said.

This type of investigation has often been compared to grand jury proceedings in the civilian judicial system since both are concerned with determining whether there is sufficient probable cause to believe a crime was committed and whether the person accused of the crime committed it. The military investigation, however, is broader in scope and more protective of the accused.

Jones did not release the names of the cadets or many details about the alleged incident, citing the fact that the investigation is ongoing. The Coast Guard Investigative Service (CGIS) conducted the initial investigation.

Jones added that the Academy is concerned with protecting the rights of the victim and the accused and ensuring the legal process is fair.

“I ask everyone to be patient and not to engage in supposition and rumors,” he said. “As soon as it gets to the point where it’s appropriate to release information directly to the public about the case, we’ll be ready to do that.” An Article 32 hearing is a public hearing.

The only cadet ever court-martialed at the Coast Guard Academy was tried on sexual assault charges in 2006. Webster M. Smith was convicted on extortion, sodomy and indecent-assault charges and acquitted of rape.

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled “Conduct Unbecoming An Officer and a Lady” available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )

The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial. Stosz, as the convening authority, will decide which path to take.

Jones said he is hoping for a decision within one to three months, but there are legal processes that could extend that timeline. (By Jennifer McDermott)

j.mcdermott@theday.com

(CGA cadet accused of sexually abusing another cadet,McDermott J.,The Day, Military News, Feb 05, 2014) 

(ADDITIONAL EXPLANATORY INFORMATION)

Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as “Rape and carnal knowledge,” but is now entitled “Rape, sexual assault, and other sexual misconduct.”

The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the “General” Article).

The new Article 120 replaces the following Article 134 offenses:

The UCMJ change also amends two Article 134 offenses:

(1) Indecent language communicated to another – other than when communicated in the presence of a child – remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.

(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is “compelled,” it becomes an Article 120 offense.

ELEMENTS OF THE OFFENSE

Rape

By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.

By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.

By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
      (ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
      (iii) That, as a result, that other person’s ability to appraise or control conduct was substantially impaired.

Aggravated sexual assault

By using threats or placing in fear:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by causing bodily harm to another person.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

      (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)
      (ii) That the other person was substantially incapacitated;
      (iii) That the other person was substantially incapable of appraising the nature of the sexual act;
      (iv) That the other person was substantially incapable of declining participation in the sexual act; or
      (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

Aggravated sexual contact

By using force:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by using force against that other person.

By causing grievous bodily harm:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing grievous bodily harm to any person.

By using threats or placing in fear:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
      (iii) (a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
      (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
      (c) That, as a result, that other person’s ability to appraise or control conduct was substantially impaired.

Abusive sexual contact

By using threats or placing in fear:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing bodily harm to another person.
      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements)
      (iii) That the other person was substantially incapacitated;
      (iv) That the other person was substantially incapable of appraising the nature of the sexual contact;
      (v) That the other person was substantially incapable of declining participation in the sexual contact; or
      (vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.

Wrongful sexual contact

      (a) That the accused had sexual contact with another person;
      (b) That the accused did so without that other person’s permission; and
      (c) That the accused had no legal justification or lawful authorization for that sexual contact.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

Indecent act

      (a) That the accused engaged in certain conduct; and
    (b) That the conduct was indecent conduct.

Indecent exposure

      (a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
      (b) That the accused’s exposure was in an indecent manner;
      (c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused’s family or household; and
    (d) That the exposure was intentional.

Aggravated sexual abuse of a child

      (a) That the accused engaged in a lewd act; and
    (b) That the act was committed with a child who has not attained the age of 16 years.

Forcible pandering

      (a) That the accused compelled a certain person to engage in an act of prostitution; and
    (b) That the accused directed another person to said person, who then engaged in an act of prostitution.

Note: If the act of prostitution was not compelled, but “the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused,” see Article 134.

DEFINITIONS

Sexual act. The term ‘sexual act’ means —

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

Sexual contact. The term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

Grievous bodily harm. The term ‘grievous bodily harm’ means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in Article 128, and a lesser degree of injury than in section 2246(4) of title 18.

Dangerous weapon or object. The term ‘dangerous weapon or object’ means —

(A) any firearm, loaded or not, and whether operable or not;

(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or

(C) any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.

Force. The term ‘force’ means action to compel submission of another or to overcome or prevent another’s resistance by —

(A) the use or display of a dangerous weapon or object;

(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or

(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.

Threatening or placing that other person in fear.The term ‘threatening or placing that other person in fear’ for the charge of ‘rape’ or the charge of ‘aggravated sexual contact’ means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.

Threatening or placing that other person in fear. In general. The term ‘threatening or placing that other person in fear’ for the charge of ‘aggravated sexual assault, or the charge of ‘abusive sexual contact’ means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.

Inclusions. Such lesser degree of harm includes —

      (i) physical injury to another person or to another person’s property; or
      (ii) a threat —
      (I) to accuse any person of a crime;
      (II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
    (III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

Bodily harm. The term ‘bodily harm’ means any offensive touching of another, however slight.

Child. The term ‘child’ means any person who has not attained the age of 16 years.

Lewd act. The term ‘lewd act’ means —

(A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.

Indecent liberty. The term ‘indecent liberty’ means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child’s consent is not relevant.

Indecent conduct. The term ‘indecent conduct’ means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person’s consent, and contrary to that other person’s reasonable expectation of privacy, of —

(A) that other person’s genitalia, anus, or buttocks, or (if that other person is female) that person’s areola or nipple; or

(B) that other person while that other person is engaged in a sexual act, sodomy (under Article 125 ), or sexual contact.

Act of prostitution. The term ‘act of prostitution’ means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.

Consent. The term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if —

(A) under 16 years of age; or

(B) substantially incapable of —

(i) appraising the nature of the sexual conduct at issue due to —

(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

Mistake of fact as to consent. The term ‘mistake of fact as to consent’ means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused’s state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

MAXIMUM PUNISHMENTS

Rape and Rape of a Child: Dishonorable Discharge, death or confinement for Life, and forfeiture of all pay and allowances.

Aggravated Sexual Assault: Dishonorable Discharge, confinement for 30 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Assault of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Abuse of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Contact:Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Contact with a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Abusive Sexual Contact with a Child:Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.

Indecent Liberty with a Child: Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.

Abusive Sexual Contact: Dishonorable Discharge, confinement for 7 yrs, and forfeiture of all pay and allowances.

Indecent Act: Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.

Forcible Pandering:Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.

Wrongful Sexual Contact:Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Indecent Exposure: Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Article 130—Housebreaking

Text.

“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”

Elements.

(1) That the accused unlawfully entered a certain building or structure of a certain other person; and

(2) That the unlawful entry was made with the intent to commit a criminal offense therein.

Explanation.

(1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essential that there be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one of the offenses made punishable under Articles 118 through 128.

(2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and must be alleged and proved to support a conviction of this offense. If, after the entry the accused committed a criminal offense inside the building or structure, it may be inferred that the accused in-tended to commit that offense at the time of the entry.

(3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense, is a “criminal offense.”

(4) Building, structure. “Building” includes a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an in-closed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry.

(5) Entry. See paragraph 55c(3).

(6) Separate offense. If the evidence warrants, the intended offense in the housebreaking specification may be separately charged.

Lesser included offenses.

(1) Article 134—unlawful entry

(2) Article 80—attempts

Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

UCMJ Article 134—General article

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

Elements.

The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder or neglect to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, then the following proof is required:

    (1) That the accused did or failed to do certain acts; and
    (2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Explanation.

(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. How-ever, see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen.

(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 1).

      (a)

To the prejudice of good order and discipline

      . “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are preju dicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is con-fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However,

see R.C.M. 203

    concerning subject-matter jurisdiction.
      (b)

Breach of custom of the service

      . A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the vari ous armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive.

See

    paragraph 16c.

(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

(4) Crimes and offenses not capital (clause 3).

      (a)

In general

      . State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State law becomes Federal law of local application under

section 13 of title 18 of the United States Code

      (Federal Assimilative Crimes Act—

see

    subparagraph (4) (c) below). For the purpose of court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in a reas of federal jurisdiction).

(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting ( 18 U.S.C. § 471), and various frauds against the Government not covered by Article 132.

(c) Crimes and offenses of local application.

      (i)

In general

    . A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal statutes (defining particular crimes), and a general federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws).

(5) Limitations on Article 134.

      (a)

Preemption doctrine

      . The preemption doc-trine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in

Article 121

    , and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121.

(b) Capital offense. A capital offense may not be tried under Article 134.

Above Information from Manual for Court Martial.

Categories: Military Justice | Tags: , , , , , , | 4 Comments

A Former Mental Institution Will Be The Home Of The Coast Guard and Homeland Security

English: Seal of the United States Department ...

English: Seal of the United States Department of Homeland Security. (Photo credit: Wikipedia)

Homeland Security’s Future Home: A Former Mental Hospital

As
we celebrate the Coast Guard’s Birthday on August 4, 2013, we reflect
upon the progress the United States Coast Guard has made since its
inception in 1790. Originally the Coast Guard was the nucleus of the
Treasury Department. Later it was moved to the Transportation
Department, and finally to the Department of Homeland Security.

 

Some are beginning to wonder if the move to the DHS was such a good idea.

The Department of Homeland Security (DHS) has became a case study in mismanagement. DHS’s top ranks swelled with appointees with questionable
credentials
, such as, the Civil Rights Officer. A more famous political appointee was Michael Brown, who totally mismanaged the Government’s efforts following Hurricane Katrina. The former FEMA director had been previously employed for a decade by the International
Arabian Horse Association
. There were frequent interagency tussles. For
instance, two separate agencies—the Customs and Border Protection (CBP)
and Immigration and Customs Enforcement (ICE)—were supposed to safeguard
the nation’s peripheries together. It didn’t go well. “It’s vital to
recognize that the two bureaus barely interact,” David Venturella,
former director of ICE’s office of detention and removal operations,
told a congressional committee in 2005. “When they do, they argue over
budget, operations, and jurisdiction.” DHS’s goof-ups were spectacular
and sometimes comical
. In 2005, Congress chastised its Directorate of
Information Analysis and Infrastructure Protection for including
mini-golf courses, petting zoos, and a bourbon festival alongside
nuclear power plants on its list of places in danger of terrorist
attacks. DHS also had a habit of entering into no-bid contracts with
politically connected companies.

shock

Chris Mills frequently gives tours of St. Elizabeths Hospital, a
former mental institution
where the U.S. Department of Homeland Security (DHS)
is building a $4.5 billion headquarters. It’s the largest construction
project in the District of Columbia since the Pentagon was completed in
1943. So there’s a lot of ground to cover. Mills prefers to chauffeur
his guests around the place in a golf cart.

A cheerful 55-year-old with a neatly trimmed mustache, Mills, who is
managing the project for DHS, tells visitors to look out for animals.
There are loads. Herds of deer, a flock of wild turkeys, and a bald
eagle reside in the fenced-in facility. They might not last long
outside. St. Elizabeths is located in Anacostia, one of D.C.’s toughest
neighborhoods
. But they have little to fear inside the high-security
fences. “It’s like the wild kingdom in here,” Mills says with a chuckle.

Then he’s off in his golf cart with his passengers. His boss, Jeffery
Orner, DHS’s chief readiness support officer, who oversees all of the
department’s real estate, has come along for the ride. There’s a DHS
public-relations person on board, too. She sits in the back, smiling and
saying nothing. Everybody is wearing hard hats and DHS safety vests.

As Mills meanders through the leafy campus on a splendid June
morning, he explains that the headquarters is mission-critical. He says
DHS is currently scattered in 50 locations throughout the capital. After
its dismal performance in Hurricane Katrina in 2005 under FEMA’s Michael Brown, the agency decided
it would be better able to fight terrorists and respond to natural
disasters if its leaders worked side by side in one place. “We really
needed a consolidated headquarters,” Mills says.

 

St. Elizabeths’ Center Building, c. 1900(Courtesy National ArchivesSt. Elizabeths’ Center Building, c. 1900)

He
explains that DHS will use many of the old hospital buildings on the
176-acre campus. He pulls up to the dining hall where inmates once took
their meals. It has been painstakingly restored and will serve as a
festive 300-seat cafeteria for Homeland Security employees. The kitchen
has been completely refurbished and the dining room is now lit with
hanging pastel-colored globes. “As you can see, this is ready to go,”
says Mills proudly.

From there it’s a quick trip to the future
seat of the secretary of the Department of Homeland Security. Until
recently, that would have been Janet Napolitano, but she announced her
retirement on July 12. Whoever runs DHS will occupy the former office of
the St. Elizabeths asylum superintendent. They were surrounded by the
inmates.

It isn’t ready, not by a long shot. There aren’t lights, for
one thing. Mills passes out flashlights and leads the way inside. There
are holes in the floors. The ceilings are collapsing in some areas.
Mills says St. Elizabeths moved patients out of the building in the
1960s, but somebody forgot to turn off the heat. “The steam was left on
for years and years and years and years,” Mills laments. “The building
literally rotted from the inside. The floors collapsed on each other.”

“This
renovation of this building would make a great HGTV episode,” Orner
says, “except they tend to complete their work in one show.”

It’s a
clever line, one that Orner has undoubtedly uncorked previously. But he
raises an important issue. The project is moving slowly, even by the
geologic standards of the U.S. government. It’s been plagued by delays
and mounting costs. People might not even remember Napolitano when the
building is completed, which might be around 2026
.

 

 

In the
months after the Sept. 11, 2001attack on the World Trade Center, the Bush administration and the U.S. Congress
decided that Americans would be safer from terrorists if they combined
22 federal agencies into a single unit—including the Coast Guard, the
Customs Service, the Secret Service, the Immigration and Naturalization
Service (INS), the Transportation Security Administration, the Federal
Emergency Management Agency (FEMA)
, the National Infrastructure Protection
Center, the Federal Computer Incident Response Center, and the Animal
and Plant Health Inspection Service
, to name just a few. It was the
largest reorganization of the federal government since the creation in
1947
of what would become the U.S. Department of Defense.

The new Department of Homeland Security would have 180,000
employees and a $36 billion budget, but its supporters promised it would
be nimble. There were a few dissenters in Congress. One was
Representative John Mica, a Florida Republican. “I gave a little speech
at the time,” he remembers. “I said anyone who thinks you can combine 22
agencies and 200,000 people and it’s going to be more efficient and
economical
needs to have their head examined.

He turned
out to be prophetic. DHS became a study in mismanagement. The
department’s top ranks swelled with appointees with questionable
credentials
, such as, the Civil Rights Officer, and Carmen Walker. The most famous was Michael Brown, the former FEMA director
who had been previously employed for a decade by the International
Arabian Horse Association. There were frequent interagency tussles. For
instance, two separate agencies—the Customs and Border Protection (CBP)
and Immigration and Customs Enforcement (ICE)—were supposed to safeguard
the nation’s peripheries together. It didn’t go well. “It’s vital to
recognize that the two bureaus barely interact,” David Venturella,
former director of ICE’s office of detention and removal operations,
told a congressional committee in 2005. “When they do, they argue over
budget, operations, and jurisdiction.” DHS’s goof-ups were spectacular
and sometimes comical
. In 2005, Congress chastised its Directorate of
Information Analysis and Infrastructure Protection for including
mini-golf courses, petting zoos, and a bourbon festival alongside
nuclear power plants on its list of places in danger of terrorist
attacks. DHS also had a habit of entering into no-bid contracts with
politically connected companies.

(Devin Leonard, Bloomberg Businessweek)

 

Webster Smith Took A Hit from CG Office of Civil Rights.

It
took a long time for the Dept Homeland Security, Office of Civil Rights
to make a decision on the Webster Smith Discrimination Complaint.
Today, Webster Smith is on the ropes after receiving a sucker punch from
Ms Carmen Walker, the Deputy Officer for EEO Programs in the Department
of Homeland Security. The big question is will he be able to survive a “standing 8 count”, or will this be the final round in his fight to get justice from the Coast Guard Academy and the Coast Guard?

 

Carmen H. Walker, DHS, Deputy Officer for EEO Programs, Office of Civil Rights and Liberties, in her 20 August 2007 letter says that because Webster Smith was court-martialed, he could not have been discriminated against, as a matter of law.
Well, that is just flat out patently wrong. A court-martial does not
bar a civil rights action. The court-martial was just one act in a chain
of events, each of which constituted racial discrimination. The same
set of facts can give rise to actionable relief in two different arenas,
as here. The several discriminatory actions taken against Webster Smith
before he was even charged under the UCMJ are completely separate and
distinct from any possible legal errors that were committed during the
course of the court-martial.

Only the legal and procedural errors
committed by the prosecution at trial are the subject of the appeal to
the Coast Guard Court of Military Revue. This decision by Ms Walker is the dumbest decision I have ever seen, and the shortest. There was more meat on the shadow of the chicken that died of starvation than in this Report. There are no Findings of Fact. There are no Conclusions. There is no Rationale, or any reasoning whatsoever. There is nothing
in the Final Report to show how she arrived at her decision. No
comparisons are made with any other cases or sets of facts. This was a
pure anal extraction.

 

H. Jerry Jones, the Coast Guard’s director of the Office of Civil Rights in Washington D.C., authorized an inquiry Dec.
7 of last year into whether former cadet first class Webster Smith, who
is Black, was treated differently during the investigation into his
case than whites who had committed similar offenses.

After reviewing Smith’s complaint, Jones dismissed 16 separate claims but authorized an investigation into the alleged inequity of treatment, headquarters spokesman Cmdr. Jeff Carter said Dec. 15.

The
Coast Guard hired JDG Associates Inc., a San Antonio-based consultant
company that specializes in equal opportunity and civil rights issues,
to examine the complaint, Carter said.

Carter explained that the
Coast Guard does not maintain a large Equal Employment Opportunity
Commission staff and needed to hire the firm to ensure fairness.

 

Consistent
with 29CFR 1614.107(b) when an agency dismisses some but not all of the
claims in a complaint, the dismissed claims will not be investigated
and the dismissal is not immediately appealable. The Department of
Homeland Security was supposed to review them together with the Report
of Investigation when it prepared the Final Agency Decision (FAD)
on the accepted claims. It does not appear that Ms Walker has done
this. She does not appear to have followed the letter or the spirit of
the regulation.

 

Webster Smith has the right to request reconsideration of the FAD,
including the dismissal determination if it is sustained. It appears
that Ms. Walker has done that by default. Even though the dismissed
claims were not processed as discreet and separate claims, the
information regarding the dismissed claims were required to be used as
evidence during the investigation of the accepted claim. Ms. Walker
certainly could not have done that. However, it is hard to tell just
what Ms Walker did, if anything. She gives very few clues as to what she
did, if she did anything. She could have flipped a coin, or rolled the
dice for all we know. The FAD is brief and uninformative. It gives very
little insight into the inner workings and hidden mechanisms of her
mind.

Ms Carmen Walker was faced with a living room full of pink elephants. She chose to ignore all of them.
She ignored what would have been obvious to even a child, and instead
she grasped at two invisible straws. She chose to hang her hat on a
technicality that will prove to be a gross embarassment to her and her
Agency. She had a chance to be on the right side of History. She
followed the path that leads into the woods, and she chose the most
frequently traveled path. That might prove to make all the difference in
the world.

 

It looks like Ms Walker has not looked at
this complaint since it first arrived on her desk. She must have noticed
that the First Anniversary of the filing of the complaint was fast
approaching. On 5 September, it will be one whole year since the
complaint was filed. Ms Walker was required by Agency Regulation to
provide Webster Smith with a copy of the investigative file, to notify
him in writing that he has a right to request a hearing and a decision
from an administrative judge or may request an immediate final decision
from the agency (29 CFR 1614.110). This Final Decision looks like
nothing more than it really is, and that is, a half-hearted attempt to
avoid letting the 360 day period run out without taking the required
agency action.

 

Oscar Wilde said that the easiest way to
get rid of a temptation is to yield to it. Ms Walker obviously believes
the easiest way to get rid of a complaint is to simply say that it does
not state a claim for which relief can be granted.

 

In her decision no evidence was evaluated. Statements were taken by the Investigating Officer, but no Facts were
deduced. There were two apparently implied facts: One, that Webster
Smith had been in the military; and, Two, that he had been
court-martialed. From those two apparently implied facts, Ms Walker
concludes that Webster Smith’s Discrimination Complaint fails to state a claim for which relief can be granted.

 

Is
this woman a lawyer? Where did she go to law school? She said that
Webster Smith cannot challenge the results of a court-martial through
the employment discrimination complaint process. Well, Ms. Walker, we
were well aware of that fact one year ago. If Webster Smith were
trying to overturn his court martial conviction by filing a civil rights
complaint, then he would not have filed an appeal to the Coast Guard
Court of Military Review. That is a separate action. It is designed to
remedy the errors committed during and after the court-martial
conviction for disobeying an order and extorting sexual favors from
Shelly Raudenbush.

 

 

The Court of Military Review has no jurisdiction to render a finding concerning whether Webster Smith was discriminated against when he was forcefully removed from Chase Hall at midnight in December 2005 by Coast Guard Intelligence, or when he was prevented from attending class, or when he was made to work on the boat docks in June 2006, or when he was forbidden to speak to any other classmates or cadets, or when he was forbidden to go within 100 yards of Chase Hall.
Moreover, it was discrimination when a press release was distributed to
the media with his photograph calling him a sexual predator and saying
that his presence created an intimidating environment in Chase Hall. All of these prohibited actions occurred long before a charge sheet was drawn up, and well before a court-martial was convened and
most certainly before a verdict was rendered. On these acts alone
Webster Smith was discriminated against because of his race. These all
occurred long before the court-martial and the other related acts occurred.

 

 

The
Court of Military Review is a military forum and can only give a
military remedy. It has no jurisdiction to give relief in the
administrative, employment area. That is why there is a civil rights
complaint procedure. It is designed to address those areas where one has
been treated differently than others based on his race, or sex.

 

A comparison may be drawn between a civil court and a criminal court.
O J Simpson was found not guilty in a Los Angeles criminal court of the
murders of Nicole Brown Simpson and Ron Goldman. That did not prevent a
civil court in Santa Monica using the exact same facts from
finding him liable to the Goldman family for the wrongful death of Ron
Goldman. By the same token, if O J Simpson had been found guilty in
criminal court that would not have been a bar to trying him in civil
court for damages.

 

The fact that Webster Smith was
court-martialed and appealed the court-martial proceedings, in no way
can lead to the unnatural conclusion that he is trying to overturn his
criminal conviction by using a civil rights complaint. If he succeeds in
his criminal appeal and is able to reverse the conviction, that still
does not mean that he was not treated differently than Matt
Bialuk, and John K. Miller, and about 12 other cadets whose cases were
handled differently. Even if Webster Smith had not been court-martialed,
he would still have a valid claim of discrimination. Just being removed
from the cadet barracks at midnight in hand cups, and forced to work at
hard labor on the boat docks, and not being allowed to continue going
to class would constitute a case of disparate treatment.

 

Is
it any wonder that Department of Homeland Security waited so long
before responding to Hurricane Katrina? With this caliber of decision
making, we should be surprised that they showed up at all. We are
left scratching our heads at the range of inefficiency and
ineffectivness that characterized the Department Homeland Security

and FEMA’s behavior right before and after Katrina. The failure of
initiative cost lives, prolonged suffering, and left all Americans
justifiably concerned our government is not prepared to protect its
people. It does not appear to be any more capable, or willing to defend
our civil rights either. I sleep a little less securely just knowing who
is in charge.

 

There is something else quite unusual about this Decision. It was sent Certified Mail Return Receipt Request and it was date stamped 20 August 2007. It had to be signed for, so we know exactly when it arrived. It did not arrive at the Smith residence until 4 September. That is more than two weeks.
If we can send a man to the moon in a week, why did it take Ms Walker’s
decision more than 2 weeks to go from Washington DC to Houston, Texas?
This is yet another example of the sterling performance of the men and
women on the front lines of Homeland Security. How can the American people sleep soundly at night with this caliber people on watch? If I were on a ship, I would sleep wearing my life preserver. We have some difficult days ahead.

 

It took this long to spin a lie that someone would believe. All history is spin. Some spin you can believe, some you cannot.

For example, we have been taught that Abe Lincoln freed the slaves; but the truth is before the outbreak of the Civil War, Lincoln believed in freeing slaves only on condition that they be immediately exported to Africa
(Liberia). He once boasted: “I am not nor ever have been in favor of
making voters or jurors of negroes, not of qualifying them to hold
office, nor to intermarry with white people.

 

Also, we
have been taught that Thomas Jefferson believed that all men are created
equal ( except for Blacks, Native Americans, and men without property);
but the truth is Jefferson was kept busy spinning how the author of the
Declaration of Independence could also own slaves, let alone force one
of them to sleep with him and bear him children.

 

Finally
we have just been told that Webster Smith, Matt Bialuk, and John K.
Miller were all treated the same; but the truth is that they were not.
They were all cadets; they were all suspected of having committed
sexually related offenses. But, only Webster Smith was taken out of
Chase Hall, forced to work at hard labor at the boat docks, prevented
from continuing with his academic classes, and prevented from coming
within 100 yards of Chase Hall. They were most certainly treated very
differently.

 

And, oh, by the way, on top of all that, Webster Smith was also court-martialed. He could have very easily been court-martialed without being discriminated against, but he was not.
But, if it makes you feel any better, you can drop that one allegation
from the civil rights complaint. He has already been found not guilty of rape,
and he has already served his 6 months in the brig. And, his appellate
lawyers have appealed the conviction to the appropriate forum. So, now
all you have to do is deal with the discrimination complaint. Anyone who
cannot see that has been promoted up to their level of incompetence.
They are not capable of critical thinking. How many people have been
irreparably harmed by this person’s bad decisions and incompetent
advice?

 

There is an old Sicilian Proverb that says “if
you sit by the river long enough, you will see the bodies of your
enemies float by”. How long will Webster Smith have to sit by the river
before he sees the bodies of Van Sice, Wisniewski, Kristen Nicholson,
Shelly Raudenbush, et al float by?

 

THIS JUST IN:

The Day was a day late and a dollar short.
In an article written by Jennifer Grogan on 9/11/2007, The Day reported
that “The U.S. Department of Homeland Security has ruled that Webster
Smith was not discriminated against on the basis of his race when he was
court-martialed for sexual assault last summer.” That is not true, nor is it correct.

 

She
reported that “The Smiths declined to comment.” That is true; however,
when they saw what she had written, they had plenty of comments. Mainly,
they commented that Ms Grogan’s article was not correct. And they were
right. The Day was forced to print a correction on 9/12/2207. As
one might expect, the CORRECTION was not as conspicuous, nor as easy to
locate as the first blatantly erroneous article. The damage had been
done. As Webster Smith’s mother, Belinda, said”After the article has gone nationwide with the Associated Press, they quietly corrected the article but the damage is done.”

The Day, unlike the Navy Times, printed an article short on facts, but long on quotes from the people who had slandered Webster Smith,
and who are trying to save face. The same people who tried to label
Webster Smith as a sexual predator and released his private cadet
photograph to the news media to be beamed around the world. At the Coast
Guard Academy,” Chief Warrant Officer David M. French, an Academy spokesman,
on Monday, 10 September, was quoted as saying “We feel the Department
of Homeland Security’s final decision on the civil rights complaint from
Webster Smith validates the academy’s actions in this matter as
appropriate.”

 

The CORRECTION buried in the B Section of
The Day simply said “The U.S. Department of Homeland Security denied a
discrimination claim filed by Webster Smith, a black man expelled from
the U.S. Coast Guard Academy following his court-martial for sexual
assault. The department ruled that the complaint was not filed in the
appropriate forum.”

 

 

To deny a complaint and
then to give 30 days for one to appeal the denial, is a long ways from
saying there was no discrimination. There has not yet been a decision on
the ultimate issue of whether Webster Smith was a victum of racial
discrimination.

 

Personally, I like The Day. I used to
read it when it was named The New London Day. It and the New York Times
were the only newspapers that I read for four years. They have a lot
more coverage of the Coast Guard Academy now than then. I wonder why.

 

Beverly
Herbert wrote on 3/31/2008: “I attended the Easter service at
Connecticut College and was glad that I did. I was pleasantly surprised
at the positive message by the former-Gov. John G. Rowland in which he
spoke of his journey from the high to the low and how faith brought him
through.

I know many people think of John Rowland as the worst
governor ever. However, during his administration I remember writing to
him and actually getting an answer and getting the issue addressed.
Also, I remember when calling the governor’s office that his staff was
always courteous, gracious, knowledgeable and helpful.

Many people seem to want to make the former governor the poster boy for political corruption in Connecticut.

Making him the poster boy can no more solve the problem of political corruption in Connecticut than making
Webster Smith the poster boy for all the sexual misconduct and abuse
that had gone on at the Coast Guard Academy for years
without anyone being held accountable.”

 

(Feb 24, 2009)Independent Audit Finds USCG Office of Civil Rights Incompetent.

Carmen Walker issued the dumbest and the shortest decision in the history of the Civil Rights Office.

Employees in the Coast Guard’s Office of Civil Rights (OCR) do not have the skills or up-to-date training to handle many of the service’s cases and formal discrimination complaints are not adequately handled, according to an independent report presented to the Coast Guard on February 5.

 

Terri Dickerson,
the office’s director, requested an independent review April 25, 2008,
less than one month after an investigation by the Coast Guard
Investigative Service, Naval Criminal Investigative Service and the FBI
failed to determine who left nooses for a Black Coast Guard Academy cadet and an officer conducting race-relations training in the summer of 2007.

 

At the same time, an unofficial Coast Guard blog was posting regularly about the office and the director’s alleged inefficiencies, reducing morale among employees and casting OCR in a negative light, according to the report.

 

The findings are “deeply disturbing and completely unacceptable,”
Cummings, D-Md., wrote in a letter to Commandant ADM Thad Allen.
Cummings, the chairman of the House subcommittee on the Coast Guard and
Maritime Transportation, said he plans to call a hearing in April to
further discuss the report.

 

“The findings of this
report demand decisive and comprehensive action to correct what appear
to be a number of significant shortfalls in the administration,” he
wrote.

 

The Coast Guard retained Booz Allen Hamilton, a
consulting firm with offices throughout the country, to review the
entire civil rights program in September 2008, according to a letter
from Dickerson to the Department of Homeland Security’s Equal Employment
Opportunity Programs.

 

Coast Guard spokesman Cmdr. Ron
LaBrec said the service is thankful for the feedback and is conducting a
thorough review of the report and its recommendations.

 

“The
[DHS] Office of Civil Rights and Liberties periodically conducts
assessments on its civil rights components and the [OCR] director wanted
to do this report now with the ongoing modernization initiative to look
across the board and improve the practices in the office and address
any allegations that were coming out of blogs or even internal
discussions. We take allegations of mistreating [privacy issues]
seriously,” LaBrec said.

 

According to the report, the
Coast Guardsmen assigned to ORC often come in with little civil rights
experience and serve two-year tours, and “often they leave their post
just as they are becoming oriented to the position.” The other Coast
Guardsmen in the office are on collateral duty, with the same limited
backgrounds, according to the report.

 

Although training
is available, the report said, many employees have not completed the
legislatively mandated initial or refresher training. In some instances training was behind up to five years.

 

“Some staff members lack the requisite skills, abilities, and training to
effectively perform the duties of their positions, thereby diminishing
effectiveness of the divisions/teams,” according to the report.

 

LaBrec said the “decentralized” structure led to the delinquency in training and
the Coast Guard is looking to “standardize” and “improve” its training
program. There are 22 full-time positions within OCR, five of which are
military, but that likely is not enough to sufficiently handle the
additional responsibilities related to the increased caseload, according
to the report.

 

Although Booz Allen acknowledges that
some of the recommendations listed in the report cannot be accomplished
with the office’s $788,459 budget, OCR’s Web site says the
recommendations are under review and lists some that have either already
been completed or can be accomplished in the near future.

 

Those include:

 


Restructuring the office to “optimize the use of our military
personnel” and take advantage of existing training and resources.

 

• Analyze the workload to ensure statutory and non-statutory obligations are being met.

 

LaBrec
said it is too early to determine what recommendations would require
additional funding or how much additional money would be needed to
accomplish those goals.

 

“The review reaffirmed many
positive aspects of the Coast Guard civil rights program. The report
also makes clear there is work ahead,” Dickerson wrote in Thursday’s
Alcoast. “Foremost, consistent with past similar studies, the BAH team
found we must restructure the [equal employment opportunity] function,
and secondarily, shore up our equal employment opportunity/equal
opportunity product lines so that they more optimally support our civil
rights service providers and work force.”

 

LaBrec also said the 58 formal civil rights complains OCR received in fiscal year 2007,
roughly one per 1,000 people, shows the office is doing some things
right, since several of the other DHS departments have a much higher
number of civil rights complaints per capita.

 

Allen
told Coast Guard Academy cadets and faculty in October 2007 that racial
bigotry will not be accepted and goes against the service’s ethos and
humanitarian mission. In August 2008, he released a service-wide message
outlining plans to improve diversity throughout the service.

 

As
part of the new initiative, every flag officer and senior executive
service member is required to attend one diversity conference a year and
they are expected to build relationships with minority-based
“institutions of higher education.”

 

The first noose,
which garnered national attention, was left in the bag of a Black cadet
in July 2007 onboard the Coast Guard cutter Eagle. The second was found
in August on the office floor of a white female officer who had been
conducting race relations training.

 

Statement of

The Honorable Elijah E. Cummings, Chairman

Subcommittee on the Coast Guard and Maritime Transportation

Hearing on

“Civil Rights Services and Diversity Initiatives in the Coast Guard”

April 1, 2009

We
convene today to consider the state of the Coast Guard’s provision of
civil rights services to its military and civilian workforce and to
applicants for employment. We will also examine the initiatives being
undertaken by the service to support expanded diversity among both its
military and civilian personnel. As part of that examination, we will
assess what the service has done to benchmark its diversity-related
initiatives following a hearing we held on this subject last year.

In
April 2008, the Director of the Coast Guard’s Office of Civil Rights
asked the Department of Homeland Security to commission and supervise an
independent assessment of the Office and of civil rights programs
within the Coast Guard. The proximate motivation for this request was
the posting of derogatory blog entries on the web. However, as the
Subcommittee has come to learn, there have long existed challenges far
more central to the provision of effective civil rights services within
the Coast Guard than those discussed in recent blog comments.

In
February 2009, Booz|Allen|Hamilton, the firm ultimately commissioned to
undertake the study of the Coast Guard Office of Civil Rights, issued
its report to the Coast Guard, which subsequently released it to the
public. I note that the Subcommittee invited Booz|Allen|Hamilton to
testify today and also invited its representatives to meet privately
with staff; they declined both offers citing their duty of
confidentiality to their client and, rather perplexingly, their internal
policy against lobbying. Despite Booz|Allen|Hamilton’s total
unresponsiveness to the Subcommittee’s inquiries about a report it
prepared on a federal agency and for which it received compensation from
U.S. taxpayer funding, the firm’s report speaks for itself.

Among
other findings, the Booz|Allen|Hamilton team’s review identified at the
Coast Guard a civil rights program that does not fully protect
confidential personal information, that does not conduct thorough
analyses of barriers to equal opportunity in employment or develop
specific plans to break these barriers down, and that has a number of
inadequately trained service providers who cannot ensure implementation
of a complaints management process that is in full compliance with
regulatory requirements.

While these findings are obviously deeply
troubling on their own, as the Subcommittee has learned in its
extensive review of the Coast Guard’s civil rights programs, they are
certainly not new. Previous reviews of the Coast Guard’s civil rights
programs, and even the self-assessments the Coast Guard submits annually
to the Equal Employment Opportunity Commission, repeatedly identify
many of the same problems noted in the Booz|Allen|Hamilton report.

For example, a 2001 review conducted by KPMG found that:

complaints were not handled in an efficient manner;

individuals who provided civil rights services as a collateral duty showed “great variation in … quality;”

affirmative
action-related reports were disseminated “but report interpretation and
action is left up to the individual unit commands, who may or may not
have the required time and knowledge to legally apply the affirmative
action program as a factor in hiring and promoting;” and

equal
opportunity reviews were being conducted, but there were “no measures
or metrics . . . by which to evaluate local command’s program
performance.”

A review conducted by PriceWaterhouseCoopers more
than a decade ago concluded that the Coast Guard’s “current civil rights
program is relatively ineffective at preventing civil rights complaints
and the current program office at headquarters is inefficient in
discharging their responsibilities.”

In May 2008, the Equal
Employment Opportunity Commission sent a feedback letter to the Coast
Guard identifying the trends it observed in the Coast Guard’s annual

self-reports
from fiscal years 2004 through 2006. Again, the comments sound very
familiar. EEOC stated that in its 2004 report, the Coast Guard admitted
that “EEO officials did not have the knowledge, skills, and abilities to
carry out the full duties and responsibilities of their positions.” In
fiscal years 2005 and 2006, the service “reported that there was
insufficient staff to conduct adequate analysis of civilian workforce
data,” and in 2004, 2005, and 2006, the service noted it “has not
implemented an adequate data collection and analysis system and had not
tracked recruitment efforts.” The EEOC found that the Coast Guard’s
recruitment practices for positions in the civilian workforce created
“unintended barriers” to diversity.

Having read all this, what was
perhaps most disappointing to me was not just the devastating nature of
these individual findings, but the fact that the problems they describe
have apparently persisted for nearly a decade. Put simply, the picture
that emerges from the reports available to us shows that despite knowing
that its equal opportunity programs did not ensure full compliance with
U.S. law and regulations, the Coast Guard has taken little to no action
to ensure full compliance. Further, there have apparently been no
consequences for these failures – except perhaps the individual
consequences that Coast Guard personnel may have borne, some of whom may
have been denied the opportunity to effectively challenge what they may
have felt was discriminatory treatment.

Discrimination is an evil
that destroys the dignity of fellow human beings and robs them of the
opportunity to achieve what their abilities would otherwise enable them
to achieve. In this, the 21st Century, any agency that tolerates any
failure in the implementation of effective equal employment opportunity
processes or in the effective management of complaints is an agency that
is willing to tolerate the possibility that discrimination may exist in
its midst.

While I applaud the decision of the Director of the
Office of Civil Rights to ask for an independent assessment of Coast
Guard civil rights practices, it is also obvious that further study is
not needed. Back in 2001, the KPMG team that assessed the Coast Guard’s
civil rights program reported that the wide gaps between how the
service’s equal employment opportunity program was described in manuals
and how the program was actually

implemented “created a perception
that the program is not necessarily a priority among senior
leadership.” It is LONG PAST TIME that these gaps be closed.

Importantly,
as the Booz|Allen|Hamilton report makes clear, successful
implementation of the reforms needed to correct the gaps that their team
found “will need to be openly endorsed at the highest level of the
Coast Guard organization to ensure the cooperation of, and participation
by, key stakeholders.” I know that the Coast Guard is undertaking a
variety of initiatives to expand diversity, and I commend the written
testimony of Admiral Breckenridge, which details these efforts. I also
commend the individual efforts of Coast Guard personnel to support the
service’s diversity goals. I note that Admiral Allen himself recently
visited Morgan State University in my district and gave a very inspiring
address to students at that Historically Black University.

What I
didn’t find in Admiral Breckenridge’s testimony, however, was a
statement that the MD-715 process will now be used as intended to
identify all barriers to equal access and to inform the development of
the plans that will eliminate these barriers, or that a similar process
will be implemented on the military slide. While I appreciate discussion
of an “upward glide slope,” progress cannot be measured until specific
goals are in place – and to think that goals would need to be defined as
“specific representational objectives” is simply to think too narrowly.

I
also commend Director Dickerson’s testimony, and her decision to
request the Booz|Allen|Hamilton review. I emphasize that I understand –
as the Booz|Allen|Hamilton report indicates and the evidence clearly
shows – that many of the problems with the Coast Guard’s civil rights
program have long pre-dated her appointment.

That said, it is now
our watch and the failures and deficiencies that exist with the Coast
Guard’s civil rights programs CANNOT CONTINUE. For the Coast Guard to
truly be “Semper Paratus” – always ready – it must take all necessary
steps to ensure that it is not handicapped by discrimination in its
ranks or the divisions that discrimination produces.

As I said
when I addressed the Coast Guard Academy following the discovery of
nooses there, “Diversity – and our mutual respect for each other – are
our greatest strengths as a nation.” They must necessarily be the
greatest strengths of those who defend this nation, but they can be so
only when an agency makes the achievement of diversity and the provision
of effective civil rights services a top priority, rather than what
appears to be a second thought.

 

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Obama’s Comments On Military Sex Abuse Constitute “Undue Command Influence”

Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court week of June 10.

Navy Judge CDR. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

“A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.

“The strain on the system created by asking a convening authority to disregard [Obama’s] statement in this environment would be too much to sustain public confidence.”

The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.

Should other judges accept the same line of reasoning, commands would have to consider issuing lesser administrative discharges to servicemembers found guilty of sexual assault. In some cases, this could allow servicemembers found guilty of sex crimes to retain veterans benefits, according to Defense Department regulations.

“I think that as a defense attorney, I would raise this argument in virtually any [sexual assault] case I had,” said Victor Hansen, vice president of the National Institute of Military Justice and former instructor at the Army’s JAG school.

 

President Barack Obama said that he has “no tolerance” for sexual assault in the military, comments made in the wake of a new Pentagon report showing the instances of such crimes have spiked since 2010.

The president said he had spoken today with Defense Secretary Chuck Hagel to urge him to “exponentially step up” efforts to identify suspects in assaults, and aggressively prosecute those cases.

“The bottom line is: I have no tolerance for this,” Obama said at a press conference following his meeting with South Korean President Park Geun-hye.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

(…)

“For those who are in uniform who’ve experience sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs,” the president said. “I will support them. And we’re not going to tolerate this stuff, and there will be accountability.”

What constitutes “undue command influence” is, at least in part, established by Article 37 of the Uniform Code of Military Justice:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

The operative question here is whether the comments by President Obama and others in the chain of command, which based on how they are set forth in the opinion seem to be little more than generalized statements about the need for increased vigilance against sexual assault in the military constitute an attempt to “coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”  In his ruling, the presiding Judge found that there was sufficient reason to believe that the President’s insistence that members of the military who have engaged in sexual assault should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged” constituted at least potential undue influence over the sentencing phase of the hearing in the case before him. Consequently, he ruled that if the Defendant is convicted, the military jury would not be able to impose a dishonorable discharge or similar punishing upon him. As noted above, this would potentially mean that the Defendant would remain fully eligible for all veterans benefits despite having been convicted of a crime while in the military.

I don’t have the expertise in military criminal law to comment on the Judge’s decision here, however the immediate consequences of his ruling. Defense attorneys representing members of the military facing similar charges will without a doubt file similar motions in the cases they are involved in, and we’re likely to get contradictory rulings on the matter from the presiding Judges in each of those cases. Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts. As for the President’s statement itself, I can’t help but think that the Judge got it wrong here. On it’s face, what the President said struck me as a general, benign, statement regarding future policy and the message that the Commander in Chief wishes the military to take the issue of sexual assault far more seriously than it has been. Is that “undue command influence?” As I said, I’m not an expert in this area so I’ll leave that to others, but it does feel to me like the Judge went a little over the top here. I suppose we can be grateful that he didn’t dismiss the cases completely.

On a general level, though, this case does point out the importance of the White House in general, and the President specifically, not getting involved in criminal investigations and prosecutions that occur under his watch, whether in the civilian or military spheres. Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific  case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.

 

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Impersonating Military Officers. What Did You Do In The War Daddy?

The court-martial of former cadet Webster Smith, the first cadet ever tried by court-martial at the U.S. Coast Guard Academy was a tragedy, but it was no accident. It was was more than just a tempest in a teapot. Congressman Christopher Shays, a Republican, held Congressional hearings on how officials were responding to reports of sexual assaults in the service academies. Congresswoman Rosa DeLauro, a Democrat, inserted a request into a Department of Homeland Security spending bill for the Government Accountability Office (GAO) to monitor the Coast Guard Academy’s progress in responding to sexual harassment claims.

The trial of Webster Smith appears to have been the main attraction in a three ring circus. The Coast Guard Academy and Connecticut Congressional Representative Christopher Shays were planning to stag a show-trial for the nation to show how military academies should handle incidents of sexual assaults at the academies. Representative Shays was chairman of the Subcommittee on National Security, Emerging Threats, and International Relations. He had organized the Washington, DC portion of the circus. He scheduled a panel entitled “Sexual Assualt and Violence Against Women in the Military and at the Academies”. On the day that the star witness for the rape charge, Kristen Nicholson, was testifying at the Coast Guard Academy, a Coast Guard Admiral from the Academy was in Washington,DC at the invitation of Representative Shays to appear before his Committee.

Rear Admiral Paul J. Higgins, Director of Health and Safety, at the Coast Guard Academy was on the witness list along with the Commandants from the other military academies. The publicity from these hearings would have been enough to get Shays reelected. However, the trial did not turn out as expected. The Convening Authority for the Court-martial, the Superintendent at the Coast Guard Academy was Admiral James Van Sice. He was tried at an Admiral’s Mast for inappropriate behavior and forced to retire.Then the furor surrounding this issue of sexual assault at military academies seemed to die down. This issues disappeared from the Washington,D.C. political radar scope. And Christopher Shays, a 10-term incumbent lost his re-election bid in November 2008.

When the full history of the Webster Smith case is written, it may turn out that Congressman Shays was the real author of the first court-martial at the Coast Guard Academy.

The hearings appeared to have been grandstanding on the part of Christopher Shays. For most of his life he appeared to have distanced himself from the military. He certainly wanted no part of duty in the armed forces. When push came to shove he claimed conscientious objector status. He has never worn the uniform of any military service. Shockingly, he is not alone.

A few of the men who once shouted “hell no; We won’t go”, are now claiming that they did. Not only are they claiming that they did go, but also that they distinguished themselves with valor, above and beyond the call of duty. Some were draft protesters, others were draft evaders, and others draft dodgers. They should not all be lumped together.

Draft protesters were often the men who burned their Draft cards in public ceremonies. Draft Dodgers took steps to violate Selective Service laws. Draft evaders were not like draft dodgers.

Some avoided conscription by taking advantage of loopholes in the Selective Service laws, a perfectly legal if not sometimes arbitrary option. In 1966 actor George Hamilton was exempted from the Draft after petitioning his own Draft Board for a deferment base on hardships at home, advising them that his mother needed him to care for her. Of course it didn’t hurt his cause that at the time he was also dating the daughter of President Lyndon Johnson. And perhaps it was just such inequities in the Selective Service program that most angered the young. They were upset not so much being called to serve as they did to the fact that often the rich, the powerful, and the brightest college students escaped being called up.

Some young men sought exemption from the Draft due to special situations: sole surviving son, deferment to complete an education, and even for personal reasons such as religious prohibitions against military service. The latter are called Conscientious Objectors (C.O.) and many of them did serve in non-combat roles, at least two C.O.s earning Medals of Honor, while others belonged to faiths that prohibited even these non-combat roles.

In 2010 according to the New Haven Register, a poll was taken after news broke that Connecticut Attorney General Richard Blumenthal falsely claimed on several occasions to have served in Vietnam during the war shows his Republican challengers for a U.S. Senate seat closing the gap.

Only about a quarter of voters, however, said he should withdraw from the race to replace retiring Democratic U.S. Sen. Christopher J. Dodd.

The Rasmussen telephone poll, showed Blumenthal, the leading Democratic contender, losing most of his lead over Republicans Linda McMahon and Rob Simmons.

A longer version of the video shot in Norwalk on March 2, 2008, was posted on Republican candidate Linda McMahon’s website. It showed Blumenthal correctly describing his military service before saying that he served “in Vietnam.”

“I really want to add my words of thanks,” Blumenthal tells the audience on the video, “as someone who served in the military during the Vietnam era in the Marine Corps.”

Blumenthal served stateside as a Marine reservist after receiving five deferments, reaching the rank of sergeant. On Tuesday, Blumenthal said he “misspoke” at times and regretted the errors.

Democrats in Connecticut and Washington stood by Blumenthal.

“On a few occasions, I have misspoken about my service and I regret that. And I take full responsibility,” said Blumenthal. “But I will not allow anyone to take a few misplaced words and impugn my record of service to our country.”

The crisis erupted when The New York Times reported that Blumenthal had repeatedly distorted his military service. The story included quotations and a video of Blumenthal saying at a 2008 event that he had “served in Vietnam.” The newspaper also said Blumenthal intimated more than once that he was a victim of the abuse heaped on Vietnam veterans upon their return home.

At a veterans event in Shelton, Conn., for example, he said, “When we returned from Vietnam, I remember the taunts, the verbal and even physical abuse we encountered,” according to a 2008 Connecticut Post story.

Blumenthal, 64, joined the Marine Reserve in 1970 and served six years, none of it overseas. He put in much of his time in Washington, where he took part in such projects as fixing a campground and working on a Toys for Tots drive, according to the Times.

He received at least five military deferments that enabled him to stay out of the war between 1965 and 1970, during which time he went to Harvard, studied in England and landed a job in the Nixon White House. Once he secured a spot in the Marine Reserve, he had almost no chance of being sent to Vietnam, the newspaper reported.

Former Representative Christopher Shays and Beth Davis, former Air Force Academy Cadet.

He is a close friend of Congressman Christopher Shays, whose early political career was marked by acts of defiance. He registered for conscientious objector status during the Vietnam War and acknowledges he would not have served if drafted. He said that he is a good friend of Richard Blumenthal’s and that he had watched with worry as Mr. Blumenthal gradually embellished his military record over the years. Over the last few years, however, more sweeping claims crept into Mr. Blumenthal’s descriptions, he said: for example, that Mr. Blumenthal had served in Vietnam, and had felt the sting of an ungrateful nation as he returned.

“He just kept adding to the story, the more he told it,” Mr. Shays said.

Michael Ray Jacobs, 52, is accused in federal court of wearing a naval officer’s uniform on at least four occasions in March 2010. He has been charged with impersonating a Navy officer, complete with medals he never earned. Court records in the case say that he was seen in the uniform at the Oceana Naval Air Station stables, the Oceana exchange, a Navy dental clinic in Norfolk and a recruiting office. He is also charged with stealing a uniform from the Oceana exchange.

Navy officials said Jacobs never served in the Navy.

The U.S. attorney’s office is prosecuting the case.

Impersonating a member of the armed forces has been a hot-button topic among veterans groups and in Congress, where a law was passed in 2006 making it a crime to falsely claim to have been awarded medals and decorations for military service.

Jeremy Michael Boorda (November 26, 1939 – May 16, 1996) was an admiral of the United States Navy and the 25th Chief of Naval Operations (CNO). Boorda is the only CNO to have risen to the position from the enlisted ranks. He was the first CNO who was not a graduate of the United States Naval Academy.

Boorda died May 16, 1996 a suicide, having apparently shot himself in the chest in his office while reporters from Newsweek magazine were waiting to interview him concerning his medals and awards. He reportedly left two suicide notes. He was reported to have been disturbed over a news media investigation, led by David Hackworth of Newsweek, into Valor device enhancements he wore on his Navy Commendation Medal and Navy Achievement Medal (small bronze “V” devices, signifying valor in combat), which the media report claimed he was not entitled to wear. He was said to be worried this issue would cause more trouble for the Navy’s reputation.

A new Superior Court Judge in Norwark, CA. claimed to be a Viet Nam vet. He was not. A history professor at West Point claimed to be a Viet Nam combat vet. He was not. A Connecticut State Congressman claimed to be a Viet Nam vet. He was not. Why are all these draft dodgers and conscientious objectors claiming to be military veterans??

A panel of special masters from the California Commission on Judicial Performance(CJP) found May 15, 2001 that Judge Patrick Couwenberg misrepresented his educational and military backgrounds to various sources, including the governor who appointed him.

CJP lawyer Jack Coyle argued that Couwenberg should be removed from the bench because his lies about his military service and his educational and professional experience were a factor in his appointment to the bench.

Couwenberg’s lawyers said the judge deserved an opportunity to remain in office. They argued that his statements were not malicious, but were the product of a psychological impairment, and pointed to praise the jurist has received for his work from both prosecutors and defense attorneys who have appeared before him.

Couwenberg is continuing to hear criminal cases in Norwalk, California.

The judge has admitted that he falsely claimed to hold a master’s degree in psychology and made false claims of military experience, including an award of a Purple Heart, in Vietnam.

The special masters found that he also lied to the commission itself, in sworn testimony, by claiming to have participated in covert operations with the CIA in Southeast Asia in 1967 and 1968. Couwenberg testified that those claims are true, although he no longer maintains he was with the CIA and says he doesn’t know what agency he was looking for.

A CIA official testified that Couwenberg wasn’t working for that agency and that it’s highly unlikely that any other agency would have recruited Couwenberg for operations in Laos because no such missions were authorized.

Couwenberg claimed that some of his misstatements were intended to be humorous. Other statements, he claimed, were typed onto official forms by his wife, based on statements he had made to her 20 years earlier, a claim the masters found lacking in credibility.

A psychiatrist testified that the judge suffers from “pseudologica fantastica,” a symptom of low self-esteem rooted in the judge’s early childhood in what is now Indonesia followed by difficult relocations, first to Holland and then to the United States.

The doctor said that the condition causes Couwenberg to mix fact and fantasy, but that it is treatable with therapy and doesn’t render him unfit for judicial service.

The masters, however, largely agreed with a psychiatrist called by commission lawyers at the masters’ hearing. Psychological testing data, Dr. James Rosenberg said, doesn’t show that the judge’s “repetitive lying” as an adult is due to childhood trauma, nor that he suffers from any recognized mental illness.

The CJP’s removal order, issued Aug. 15 and effective Sept. 14, 2001 followed revelations that Couwenberg had, among several other things, lied about being a Vietnam veteran, receiving a Purple Heart, serving in covert operations for the CIA and earning a master’s degree from California State University, Los Angeles.

Couwenberg’s lawyers and doctors said the 1976 graduate of the University of La Verne College of Law in Ontario suffers from a pathological lying condition called pseudologia fantastica, which they tied to his childhood in an Indonesian concentration camp at the end of World War II.

Joseph John Ellis (born 18 July 1943 in Washington, D.C.) was a Professor of History at Mount Holyoke College and also at the U.S.Military Academy at West Point until 1972.

Ellis became the subject of embarrassing controversy when the Boston Globe published an article on June 18, 2001, revealing that Ellis lied about fighting in the Vietnam War (he served in uniform in America but did not go to Vietnam as he had claimed to his students and to the media).He claimed to have been a platoon leader and paratrooper with the 101st Airborne Division. He said he served in Saigon under Gen. William Westmoreland. Ellis did not serve in Vietnam at all, according to military records obtained by the Globe Newspaper and interviews with his friends from the 1960s. He spent his three years in the Army teaching history at the US Military Academy at West Point, N.Y. Ellis also appears to have exaggerated the extent of the involvement he claims to have had in both the antiwar and civil rights movements.

Ellis also falsely claimed to have scored a winning touchdown in a decisive game while playing for his high school football team. In fact, Ellis never played for his high school team.

On June 21, 2001 Professor Ellis issued a statement saying: “Even in the best lives, mistakes are made. I deeply regret having let stand and later confirming the assumption that I went to Vietnam. For this and any other distortions about my personal life, I want to apologize to my family, friends, colleagues and students.”

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Supreme Court Refused To Hear Webster Smith’s Appeal.

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.

The U.S. Supreme Court has refused to hear an appeal of the conviction of Webster Smith, the only Coast Guard Academy cadet ever court-martialed.

Smith’s conviction in 2006 on extortion, sodomy and indecent-assault charges – while he was acquitted on a rape count – had previously been upheld by the Coast Guard Court of Criminal Appeals and, in March, by the U.S. Court of Appeals for the Armed Forces.

Smith had sought a Supreme Court review based largely on the argument that he had not been able to question the credibility of one of his accusers, known only as Cadet SR.

The right to confront one’s accusers is guaranteed under the Sixth Amendment to the U.S. Constitution. But the Armed Forces appeals court, in a 3-2 vote, ruled that judges have the discretion to bar testimony so long as the issue involved is not deemed necessary to the case. (Footnote 1.)

“Further cross-examination of Cadet SR was not ‘constitutionally required,’ ” according to the appeals court decision. “It was neither material nor vital.”

Smith’s attorneys wanted a chance to question the female cadet because, according to a legal brief, she had lied about the consensual nature of a previous sexual encounter with an enlisted man, contrary to Coast Guard rules and possibly jeopardizing her military career. The female cadet claimed Smith used knowledge of her previous dalliance to extort sexual favors from her.

“The defense maintained that the two cadets’ sexual encounter was consensual and that SR was fabricating her accusations because the encounter occurred in Chase Hall, the Academy dormitory, where sexual activity is prohibited by cadet regulations,” according to a brief in the case.

The court’s minority, including Chief Judge C.J. Effron, agreed that Smith’s attorneys should have been allowed to question the female cadet. In a dissenting opinion, they said Smith’s “allegation that SR had previously lied about a sexual encounter” was relevant to the case.

Last month the Supreme Court rejected Smith’s petition seeking a hearing on the case, effectively making the military appeals court’s decision final.

The case had racial overtones because Smith, who is black, claimed his treatment was harsher than previously meted out to whites at the Coast Guard Academy accused of sexual impropriety. The Department of Homeland Security investigated the allegations in 2007 and denied the complaint.

“Many Supreme Court experts thought the high court might take Smith’s case, but the justices declined the case without comment,” according to the Law And Order blog found at http://lawandorderroybean.blogspot.com.

Efforts to speak with Smith and attorneys on both sides of the case were unsuccessful Monday. Smith, a former Coast Guard football star now living in Houston with his wife and daughter, spent nearly five months in a military prison after receiving a six-month sentence.

Coast Guard spokeswoman Lisa Novak said Monday that Smith’s case is currently in the process of residual clemency, which will allow him to submit additional information before a review of his sentence by Secretary of Homeland Security Janet Napolitano.

Novak said Smith also has the right to seek a new trial before the Coast Guard appeals court, if he submits newly discovered evidence, and could also have his record cleared with a presidential pardon. According to Texas law, he will have to register as a sex offender, the National Law Journal reported.

The Smith case resulted in changes at the Coast Guard Academy, which formed a task force after the trial to look into the atmosphere on campus. The report cited a strong association between alcohol abuse and sexual assault as well as a mistrust of the Coast Guard Academy’s leadership among minorities.

Captain  Judith Keene, the first female Commandant of Cadets at the Coast Guard Academy (CGA) pledged a tough stance against campus sexual violence in July 2006 following the court-martial in which cadets testified that such issues were not taken seriously.

A subsequent study by the Government Accountability Office, issued in 2008 after a series of revelations about sexual misconduct at U.S. military academies, said the Coast Guard should be required to report on efforts to stem the tide of sexual assault and harassment cases.

Keene, who was among the first women to graduate from the academy, took over as the military equivalent of the dean of students at CGA. She replaced Captain Douglas Wisniewski, who left for a position at Coast Guard Headquarters in Washington, D.C..

The Coast Guard Academy will have the first woman superintendent of a military service academy at the helm of the U.S. C. G. A. when classes convene in the summer of 2011. The commandant of the Coast Guard, Adm. Bob Papp, has selected Rear Adm. Sandra L. Stosz, Coast Guard director of reserve and leadership, for the superintendent position. Rear Admiral Stosz graduated from CGA  in 1982 with a bachelor of science degree in Government.

The GAO noted the Coast Guard Academy was the only U.S. military school not required to report to Congress on sexual-misconduct cases.

l.howard@theday.com

The Day.

Published 12/28/2010 12:00 AM.

Footnote 1.

U.S. Constitution: Sixth Amendment
Sixth Amendment – Rights of Accused in Criminal Prosecutions

Amendment Text |
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Footnote 2.

Article 133. Conduct unbecoming an officer and a gentleman:
Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. (10 USC Sec. 933)

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