Posts Tagged With: sexual assault

Sexual Assault Conviction Thrown Out By (CAAF) Court Of Appeals For The Armed Forces.

Posted on March 12, 2012 by Judge London Steverson

Sexual Assault Conviction Thrown Out By Armed Forces Court Of Appeals.

by London Steversonon Monday, March 12, 2012 at 10:51am ·

Captain Nicholas Stewart, USMC.

 

The Court of Appeals for the Armed Forces threw out this week the sexual assault conviction of Marine Captain Nicholas Stewart, citing issues with the prosecution as well as improper action by a military judge.

Stewart, who served as a fighter pilot in Iraq, was convicted of sexual assault under a 2006 law that enabled the military to make charges in cases in which the victim was “substantially incapacitated” from alcohol. Stewart was accused by a longtime friend who said although she was not forced by Stewart, she was too inebriated to have consented to sex. Stewart challenged the accuser, but was convicted and sentenced to two years in prison. He was also registered as a sex offender.

As McClatchy reported Thursday, Stewart’s case was appealed, and the court found that the prosecution lacked evidence to support the accuser’s claims. The court also stated in its ruling that the military judge at Stewart’s initial trial had “created the framework for a potential double jeopardy violation” by having the jury re-deliberate the charges against Stewart. In the first deliberation, Stewart was found not guilty. However, when asked by the judge to consider what was essentially the same charge, the jury found the Marine to be guilty.

“As a result of the military judge’s instructions, [the jurors] were placed in the untenable position of finding Stewart both guilty and not guilty of the same offense,” wrote the appeals judges.

The 33-year-old Stewart, who had served more than a year of his sentence, expressed relief after the appeals court’s decision.

“I am grateful for this long-awaited proof of the integrity of our judicial system,” he said. “I look forward to continuing to serve our country and our Marine Corps.”

Stewart’s case illuminates issues that some have taken with the 2006 law. As McClatchy reported last year, the law has been described as “flawed” for its confusing language, as well as the fact that it shifts the burden of proof to the accused.

 

However, with recent Pentagon reports showing that sexual assault in the military has taken a dramatic rise, others worry that not enough is being done to prevent assault. After the report, which showed a 64 percent jump in assaults since 2006, was released, Secretary of Defense Leon Panetta announced plans to create new initiatives aimed at curbing the growing problem.

Several cases invoking the 2006 law have made the news recently, including the charging of three Air Force cadets with sexual assault. Two of those cadets were charged with assaulting women who were “substantially incapacitated.” These cases were also reportedly complicated by a lack of forensic evidence.

 

Compare this case to the Webster Smith case and you will see how fickle this court can be. The Smith Case was appealed to the Supreme Court. Most Supreme Court watchers had expected the Supreme Court to hear the case or at the very least to give an explanation of why not. We were all sorely disappointed.

 

 

Coast Guard Academy Cadet Webster Smith

This Smith Case implicated a deep federal circuit conflict regarding the standard of review that applies when a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause. The Court of Appeals for the  Armed Forces (CAAF) held that the standard of review is abuse of discretion rather than de novo. Applying the former standard, the court rejected Webster Smith’s Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided Over What Standard Of Review Applies To Confrontation Clause Claims Like Webster Smith’s. The CAAF employed abuse-of-discretion review in resolving Smith’s Sixth Amendment challenge to the military judge’s restriction on the defense’s cross-examination of Shelly Roddenbush. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo, reserving abuse-of-discretion review for non-constitutional challenges. For example, the Seventh Circuit has stated that “[o]rdinarily, a district court’s evidentiary rulings are reviewed for abuse of discretion.

However, when the restriction [on cross-examination] implicates the criminal defendant’s Sixth Amendment right to confront witnesses against him, … the standard of review becomes de novo.”

The First, Fifth, Eighth, and Tenth Circuits have adopted the same approach.

Six other circuits, by contrast—the Second, Third, Fourth, Sixth, Eleventh, and District of Columbia Circuits— Take  the same approach that CAAF does, applying abuse-of-discretion review even when a restriction on the cross-examination of a prosecution witness is attacked on constitutional grounds. The Sixth Circuit, for example, stated in one case that “[defendant] argues that his right to confrontation was violated when the trial court ‘unfairly’ limited his cross-examination of [a] government witness .… We review the district court’s restriction on a defendant’s right to cross-examine witnesses for abuse of discretion.”

In short, CAAF’s use of an abuse-of-discretion standard in the Webster Smith Case perpetuated a clear—and recognized—conflict in the circuits.

The Question Presented Was Recurring And Important, And The Smith Case Was A Good Vehicle For Deciding It.

The circuit conflict warranted resolution by the Supreme Court. It was indeed a sad day for Supreme Court watchers when that court of Last Resort side stepped an issue of monumental importance without a word of explanation.

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The Force Factor In Sexual Assault Cases.

Posted on March 8, 2012 by Judge London Steverson

Force Was the Deciding Factor In The Rape Case.

The use of force appears to have been the deciding factor for the Convening Authority in the Air Force Academy sexual assault Article 32 Investigation. Anyone who used force in the sexual assault was referred for trial by court-martial; whereas, anyone who was patient and waited for the alcohol to take its toll was allowed to go scott free.
That is so ironic, because the only one who achieved vaginal penetration with his organ was allowed to go free. He dodged a bullet. However, on the other hand, the cadet who used his fists in the act of sexual assault never got further than heavy petting and massaging of the genitalia.

The Cadet Kyle Cressy incidents date to May 2011. The charges state that he penetrated a female cadet’s vagina with his hand or finger, as well as his penis, while she was “substantially incapacitated.” Cressy’s charges have been dropped by the Air Force Convening Authority on the recommendation of the Article 32 Investigating Officer. Cressy’s accuser said she passed out on his bed, then awoke to find a man touching and then having sex with her. She testified that she kissed him before blacking out and never said “no” — and while she recalled trying to push his hands away, the mitigating evidence, combined with a two-day delay before she reported having been assaulted, appear to have been factors in the Convening Authority’s, Brigadier General Richard Clark’s, decision to drop the charges against him.

Air Force officials say testimony about alcohol consumption was among the reasons they decided not to prosecute Cressy on sexual assault charges. In a statement released 5 March the Academy spokesperson said Article 32 Investigating Officer assigned to Cressy’s case found no reasonable grounds to prosecute. He cited testimony that the alleged victim wrote and sent a text message that she couldn’t recall, and expert testimony that it’s possible for someone to consent to sex and suffer an alcohol blackout preventing recall of the event.

Cadet Stephan Claxton, AFA Class 2013, was charged with illicit acts in March and November of last year. In the first, he’s said to have placed a cadet’s hand on his penis while engaging in underage drinking. In the second, he is accused of striking a fellow cadet on the face with his fist and unbuttoning and unzipping her pants without her consent, as well as forcibly kissing and choking her. Claxton was recommended for court martial buy the Article 32 Investigating Officer.

The court-martial was recommended by Maj. Gen. Richard Clark, Commandant of Cadets and the academy’s special court-martial convening authority. The decision is pending with Lt. Gen. Mike Gould, Superintendent and the Academy’s General Court-martial Convening Authority. Vice Superintendent Col. Tamara Rank said, “We expect the best from our cadets and do not tolerate unacceptable behaviors.”
The Cressy and Claxton hearings concluded with very different results.

The Article 32 hearing for Cadet First Class Robert M. Evenson, Class of 2011, is still under way. Evenson had three charges preferred against him in January for allegations of engaging in an unprofessional relationship, rape, aggravated sexual assault contact and indecent acts and conduct unbecoming to an officer.

Three additional charges were preferred against him last month and are under investigation. They include wrongful sexual contact and indecent acts, stalking and assault.
It appears that force and the use of force will be the new battle ground in the battle between women and the military when it comes to disposing of rape and sexual assault allegations.
In a major law suit filed by 8 present and former US Marine Corps female officers, the use of physical force is being challenged as an unnecessary element in the proof of the offense. The women argue that proof of force should not be necessary in the modern world. They argue that modern rapists are more methodical and patient; they wait for the drugs or alcohol to lower the females capacity to give or withhold consent. Once the ability to give informed consent is so impaired then the women can be raped and the rapist is left with plausible deniability if the case is prosecuted.
The women and their attorney seek to change the UCMJ and the military male-dominated culture on the issue of force in the conduct of rape and sexual assault. They want to rewrite Article 120 of the UCMJ to remove proof of the use of force as an element of the crime.
In the Webster Smith Case force was not an issue. All of the sexual encounters were found to be consensual. The Coast Guard prosecutor was reduced to trying to prove that psychological coercion was used to persuade a female to take nude pictures and perform a sexual act. Amazingly this woman’s reputation in the community since high school was that of a person with easy virtue who delivered the good faster than Federal Express. The very nature of her secret that was at the heart of the alleged coercion was about a sexual tryst with an enlisted man from another branch of the service. And to top it all off, the woman was testifying under a grant of immunity. Truly amazing, it is hard to make this stuff up.
A press conference was held at the National Press Conference Tuesday March 6, 2012 to announce a new lawsuit being filed in the US District Court in Washington, DC on behalf of eight current and former members of the Navy and Marine Corps. The lawsuit, filed by Susan L. Burke of Burke PLLC, charges that the “laws designed to reduce rape, sexual assault and harassment in the Navy and Marine Corps directly and seriously harmed Plaintiffs and others who have reported rape and sexual assault and have challenged sexual harassment. Rather than being respected and appreciated for reporting crimes and unprofessional conduct, Plaintiffs and others who report are branded ‘troublemakers,’ endure egregious and blatant retaliation, and are often forced out of military service.”

The lead plaintiffs, Adriana Klay and Elle Helmer, stationed at the central command headquarters of the Marines in Washington, DC, are both former Marine officers. Klay was a merit scholar and is an honors graduate of the US Naval Academy. She was sexually harassed and gang raped by a senior Marine Corps officer and his civilian friend in order to “humiliate her.” Elle Helmer, the Public Affairs Officer and Official Spokesperson for the Marines, was ordered to participate in a “pub crawl” by her immediate superior officer and then raped by him.

Speakers at the press conference included Susan Burke, Eleanor Smeal, Anu Bhagwati, Executive Director and Co-Founder of Service Women’s Action Network (SWAN), Linda Hallman, Executive Director of American Association of University Women (AAUW), Nancy Parrish, President of Protect our Defenders, and Colonel Ann Wright, who is retired from the military.
“Although defendants testified before Congress and elsewhere that they have ‘zero tolerance’ for rape and sexual assault, their conduct and the facts demonstrate the opposite: They have a high tolerance for sexual predators in their ranks, and ‘zero tolerance’ for those who report rape, sexual assault and harassment,” according to the lawsuit filed in the U.S. District Court in Washington.

The suit outlines a pattern of abuse and portrays, in grim detail, the alleged experiences of the eight female service members — two former Marine Corps officers, one active duty enlisted Marine, one former enlisted member of the Marine Corps and four former enlisted members of the Navy.

“At first it was easy to laugh it off,” plaintiff Elle Helmer, one of the former officers, said about her superiors’ advances.
“When you finally said, you know, I’m really not interested, I’d rather we be friends — that’s when you became the target. They hated you for standing up for yourself,” she told HLN’s Jane Velez-Mitchell on Tuesday night.

The lawsuit alleges Helmer was raped by her superior at his office in March 2006 after a required pub crawl.

She told reporters at the National Press Club in Washington earlier in the day that she hoped by going public other victims would be encouraged to speak out.

“We all just wanted to serve our country and be good Marines and service members,” former Marine Lt. Elle Helmer said. “Ultimately we were failed.”

Helmer is one of eight current and former female service members who filed a lawsuit alleging rape, sexual assault and harassment while serving in the military.

Click here to read the entire lawsuit

“It’s very hard to come forward and admit what they would call weakness, but what I would call strength in the sense that people are coming forward and asking for help,” Helmer said.

She claims her assault occurred while stationed at the Marine Corps Barracks in Washington, DC, as a public affairs officer.

She says after being ordered to attend a Marine Corps-endorsed pub crawl and drink excessively, her boss, a major, ordered her back to his office and raped her.

“Ultimately I fell and hit my head on the corner of his desk and was knocked out,” she said. “During the time I was knocked out was when the rape occurred.”

Helmer says she was ultimately forced out of the Marine Corps, which she says is far too common with other victims.

“The Department of Defense is ultimately losing good personnel, and victims are becoming collateral damage,” Helmer said.

The lawsuit claims many of the men questioned were barely punished, if at all. It’s an issue Helmer says goes beyond the service women who report the assaults.

“My rapist was served collateral duties at the White House,” she said. “With that said, these people guard the president.”

Helmer says she hopes the lawsuit is a catalyst for change and the military realizes how big this problem really is.

“Take care of your people, and if you’re losing your people, it’s ultimately weakening a nation. It’s a homeland security issue,” she said.

“It’s the first time I’ve had a voice in six years, so pardon if it’s a little wobbly,” said Helmer.

She was joined by Ariana Klay, another former Marine Corps officer and plaintiff, who served in Iraq in 2008 and 2009.

In August 2010, Klay was “gang-raped” by a senior officer and his civilian friend at her Washington home, the suit contends. The officer allegedly threatened to kill Klay.

She reported the rapes and the officer was eventually convicted in a military court of adultery and indecent language, and given 45 days in military confinement, Klay said.

“Their stance was there were two that said it (sex) was consensual, despite the death threat. That’s two against one. So by that logic, the more people you’re gang-raped by the less your case is,” she told Velez-Mitchell.

The Marine Corps responded to Klay and Helmer’s allegations in a written statement Tuesday that said their respective cases had been properly investigated and handled.

“Federal law and judicial rulings require commanders in all services, including the Marine Corps, to balance needs of alleged victims with the constitutional rights of service members accused of crimes,” it read.
Smeal asserted, “The women’s movement is determined to end this wonton violence against women in the armed services. The definition of rape in the military must change to comply with the new FBI definition, which has recognized that force need not be present, but rather in modern rape alcohol and drugs are used to subdue the victim. The cover-up for a few predator abusers in the military is injuring women, men, and the armed services themselves.”

The Pentagon’s “Fiscal Year 2010 Annual Report on Sexual Assault in the Military” indicated that approximately 3,000 women experienced sexual assault in fiscal year 2008, which is a 9 percent increase from the previous year. Experts say that the real rate of sexual assault in the military is five times report incidence. Because of the high level of retaliation, victims are afraid to report. For women in the military in Iraq and Afghanistan, the rate of sexual assaults by US military personnel increased by 25 percent.

According to a 2003 study by the Veterans Affairs Medical Center, at least one-third of all women veterans have experienced rape or sexual assault during their service primarily from US service personnel, and thirty percent of military women experience domestic violence. Moreover, rape occurs in the military nearly twice as often as in the civilian world.
According to the most recent Defense Department study, more than 19,000 incidents of unwanted sexual contact are estimated to have occurred in 2010, though less than 3,000 of those events were reported.

In 2010, less than 21% of reported cases went to trial. Of the 529 alleged perpetrators who were prosecuted, 53% were convicted, according to the 2011 Sexual Assault Prevention and Response Office, which is part of the Defense Department.

“As leaders of this department we are committed to doing everything we can to ensure the safety, dignity and well being of our people. One sexual assault is one too many,” Defense Department spokeswoman Cynthia Smith said in response to the lawsuit.

As a result of the pending litigation, she was unable to comment directly on the allegations.

“Because sexual assault cases are some of the toughest cases to investigate and prosecute, the department has increased funding for investigators and judge advocates to receive specialized training,” said Smith.

The lawsuit was filed less than two months after Defense Secretary Leon Panetta outlined new measures targeting sexual assaults against U.S military personnel.

In January, he promised increased funding to train military investigators and judge advocates about sexual assault cases, stressing the military has a “zero tolerance policy” for such crimes.

“Our men and women in uniform put their lives on the line every day to try to keep America safe,” Panetta said then. “We have a moral duty to keep them safe from those who would attack their dignity and their honor.”
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Impersonating Military Officers. What Did You Do In The War Daddy?

Posted on February 13, 2012 by Judge London Steverson

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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Color Blind Justice.

Posted on February 2, 2012 by Judge London Steverson

Color Blind Justice.

by London Steverson on Thursday, February 2, 2012 at 2:07am

Air Force Academy Cadets Evenson, Claxton, and Cressy.

The Air Force Academy announced on January 5 that three male cadets had been charged with sex crimes stemming from unrelated incidents between February 2010 and May 2011. Academy officials said the three cases were announced together because the investigations happened to end at about the same time.

Cadet Robert M. Evenson Jr. is charged with rape. Evenson, for his part, allegedly masturbated over a cadet and ejaculated on her stomach while holding her down sometime during the month of November 2010. Between March and July of that year, he’s also suspected of forcing sex “using power or strength or restraint to her person sufficient that she could not avoid or escape the sexual conduct.” In addition, in February 2010, the Charge Sheet contends that he helped a cadet in an Honor case “in return for a dating relationship and sexual favors, requiring her to violate her probation in return for helping her, and threatening to harm her military career if she did not comply.”

Cadet Stephan H. Claxton is charged with abusive sexual assault. Claxton is charged with illicit acts in March and November of last year. In the first, he’s said to have placed a cadets hand on his penis while engaging in underage drinking. In the second, he is accused of striking a fellow cadet on the face with his fist and unbuttoning and unzipping her pants without her consent, as well as forcibly kissing and choking her.

Cadet Kyle A. Cressy is charged with aggravated assault. The Cressy incidents date to May 2011. The charges state that he penetrated a female cadet’s vagina with his hand or finger, as well as his penis, while she was “substantially incapacitated.”

Evenson and Claxton face other, non-sex-related counts.

It is not clear how many cases the Air Force Academy could have prosecuted; but, at least, they did not simply try to paint the crime with a black face.

The sexual assault charges against the Air Force Cadets are serious but they are not worthy of a Court-martial. Only Cadet Robert M. Evenson, Junior deserves stronger discipline. He abused his position as an Honor Code enforcer to obtain sexual favors. He should receive a Special Court-martial, not a General Court-martial. He should be held to a higher standard of conduct because he was in a position of trust. He abused that trust by taking advantage of a younger and less mature female cadet. Article 15, Non-judicial punishment, would be the appropriate forum to dispose of all the other charges. These few incidents of bad behavior should not become the most significant factors in determining their futures. Courts-martial should be reserved for terrorists and mass murderers. To bring out the big guns for such minor offenses would be a bad lesson in judgement to teach all the other cadets in the Academy.

Rep. Jackie Speier, a California Democrat, said in an interview the day of Panetta’s announcement that the military culture has “run amok” and the rules for handling sexual abuse need an overhaul. She has introduced a bill that would create a separate system within the military to investigate and prosecute sex crimes.

Currently, a victim’s commander might be part of the decision-making process. That creates a conflict of interest; the commander could suffer career damage if a subordinate is victimized; the commander could be a friend of the suspect; or the commander could be the suspect, Speier said.

“We’ve got to do something fairly dramatic to get the academies back on track and the military back on track,” she said.

“How do you measure prevention?”, asked Teresa Beasley, the Air Force Academy’s sexual assault coordinator.

Are these cadets simply a reflection of the same social dating forces at play in American society at large? It isn’t clear whether the disturbing news means sexual predation is on the rise at the Military academies. It could simply reflect the better efforts to encourage cadets to report any kind of unwanted sexual contact.

The Air Force Academy’s sex assault prevention campaign starts before freshman studies begin. Among other things, cadets are told the Department of Defense definition of sexual assault includes “intentional sexual contact … when the victim does not or cannot consent.”

The breadth of the definition comes as a surprise to some.

“When they come in at basic, you see the ‘deer-in-the-headlight’ look — ‘Wow, I didn’t realize I’d been assaulted,'” said Teresa Beasley.

Coast Guard Academy Cadet Webster Smith.

The Coast Guard had more than 10 cases of rape or sexual assault prior yo 2005. All of the sexual predators were white. None were prosecuted. Then, along came Webster Smith. He was African American and several women accused him of sexual assault. The Coast Guard Academy spared no effort or expense in prosecuting him in 2006. There was an attempt to make Webster Smith the poster child of sexual assault at the Coast Guard academy. It did not work.

In the book CONDUCT UNBECOMING an Officer and Lady I paint an accurate picture of the Coast Guard Academy sexual predator based on actual eye witness interviews. https://www.amazon.com/author/cgachall.blogspot.com

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Sexaul Assaults Return To Military Academies. Boys will Be Boys. Girls Just Want To Have Fun.

Posted on January 11, 2012 by Judge London Steverson
English: Cadets of the Air Force Academy Class...

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<a href=”http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2″>http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2</a&gt;

To start the New Year with a bang, commanders at the Air Force Academy in Colorado Springs on 5 January 2012 charged three Air Force Academy cadets with sexual assault in cases that occurred over the past 15 months.

The cases involve acts allegedly committed at the Academy, and involve civilian women as well as female cadets.

In November 2011, Cadet Stephan H. Claxton is alleged to have unzipped the fly of a female cadet while she was “substantially incapacitated” — a phrase the military has used in the past to describe intoxication.

Cadet Claxton faces assault and attempted rape charges, including an allegation that he forcibly kissed one cadet and assaulted another. He is also charged concerning an incident in March 2011, where he is accused of forcing a fellow cadet to touch his genitals and indulge in underage drinking.

Cadet Kyle A. Cressy, a graduating senior and a member of the soccer team, is charged having sex with a woman at the academy who was “substantially incapacitated.” It’s unclear from the charge sheet whether the alleged victim was a civilian or a female cadet.

Cadet Robert M. Evenson Jr. is alleged to have forcibly raped a female cadet in the spring of 2010. He’s also charged with breaking cadet regulations by having an ongoing relationship with a female freshman. He also is suspected of abusing his power position as a “cadet non-commissioned officer for honor cases” to extract sexual favors from a female fellow cadet. This is serious. He was charged with enforcing the Honor Code. he may have used it to supply gris for his mill. As one of the cadets entrusted with enforcing the Academy’s Honor Code, he would have been in a very coveted position.  He was expected to  punish those who lie, cheat, steal or tolerate others who do. Those who violate the Honor Code face a maximum punishment of expulsion from the Academy. Allegations of corruption in the Honor Code enforcement system will likely send shockwaves through the Cadet Corps and the Academy alumni. The Honor Code is the very touchstone of the Academy’s culture.

These charges come to light a week after the Pentagon reported a spike in the number of sexual assaults at the air Force Academy. There were 33 reported incidents in the 2010-2011 academic year. This is a four-fold increase in a two year span.

There are about 4,000 cadets at the Air Force Academy.  A senior academy spokesman said these charges don’t appear to mark a return of the level of incidents of sexual assault of 2003. In 2003 the Academy and the nation were rocked when dozens of female cadets reported incidents of alleged sexual assaults. Many of those cases were mishandled or ignored.

Several senior officers at the Academy were fired in the wake of the 2003 scandal. This resulted in congressional scrutiny to the issue of sexual assaults at all the nation’s military academies. There were courts-martial at the Coast Guard Academy in New London, Connecticut  and the Naval Academy at Annapolis, Maryland. Three were major reforms at those institutions.

The Coast Guard Academy court-martial of  Cadet Webster Smith marked the first time in history that a cadet at the Coast Guard Academy was given court-martial.  Some Coast Guard Academy graduates accused the Coast Guard of racial discrimination because the accused, Cadet Webster Smith, was African American and all of the accusers were white females. One of them was his girl friend who had become pregnant, and had an abortion more than six months before the Coast Guard decided to charge Cadet Smith with rape.

In the meantime it was learned that about 11 other cases of confessed rape had been resolved without resort to a court-martial. All of the other cadets were allowed to resign quietly and slip into darkness. All the other cadets were white. This is part of the reason that there were claims of bias and inappropriate command influence in the prosecution of Webster Smith.

The conviction was appealed all the way to the United States Supreme Court. It is interesting to note that there were several ‘Friend of the Court‘ or ‘amicus briefs’ filed with the Supreme Court by senior military lawyers from other branches of the armed forces in favor of the reversal of the Webster Smith conviction. It set a very bad precedent and there were irregularities in the prosecution and the appellate review of the conviction. The case was thoroughly critiqued in a book available on Amazon.com. (See http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2)

The Pentagon in a December 2011 report to Congress praised the Air Force Academy’s efforts to curb sexual assault in the ranks and gave the school high marks for its programs to encourage sexual assault reporting.

“[The academy] demonstrated commendable practices that should be considered for replication by other military service academies,” the Defense Department wrote in the report. The Coast Guard Academy had already implemented a new procedure for reporting and investigating sexual assaults in the wake of the Webster Smith case.

If any of these cadets get convicted, it would mark a reversal of fortunes for air Force prosecutors. Since the 2003 scandal, the academy has prosecuted a string of rape cases against cadets. But none of those cases has resulted in a conviction. Unlike the Coast Guard Academy, where one prosecution in 2006 resulted in one conviction and six months in jail for a graduating senior. (<a href=”http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2″>http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2</a&gt;)

Recent rape trials at the Air Force Academy have almost always centered on the issue of ‘consent’. The defendant always used as a defense that the alleged victim gave her consent. He said she asked for sex. The cases were also marked by a lack of forensic evidence that could help sort out the conflicting claims. One can never be sure what a jury will decide in a case of ‘he-said, she-said’.

Categories: Military Justice, Social Security Benefits | Tags: , , , , , , , | Leave a comment

Supreme Court Refused To Hear Webster Smith’s Appeal.

Posted on January 11, 2011 by Judge London Steverson

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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