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Court-Martialed Former CGA Cadet Appeals Convictions

Court-Martialed Former CGA Cadet Appeals Convictions
By David Collins
Published on 4/24/2007

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New London — When Coast Guard Academy Cadet Webster M. Smith was found guilty last summer of sexual misconduct, the convictions on three charges were based on the testimony of a female cadet who said Smith coerced her into an intimate encounter as a condition for not disclosing a “secret” she had confided in him.
Smith’s accuser never disclosed in the trial what that secret was, and was not required to answer questions about it under cross-examination.

Now, in a wide-ranging appeal filed with the Coast Guard Court of Criminal Appeals, Smith has revealed the secret he says his former classmate confided in him: that she had once had consensual sex with a Coast Guard enlisted man and then called it sexual assault to avoid discipline.

Smith’s lawyers, the appeal states, “were precluded from showing that (the accuser) had very recently been doing to another man precisely what the defense wanted the (jury) members to conclude she was doing to Cadet Smith: falsely claiming that a consensual but prohibited sexual encounter was actually not consensual so as to avoid responsibility for her actions.”

The fact that the judge presiding over the Coast Guard Academy’s first-ever cadet court martial did not let Smith’s lawyers fully cross-examine the female cadet is a central focus of Smith’s appeal, but one of only a number of trial errors alleged in a 41-page brief filed April 13.

Smith was sentenced in June to six months in military prison, forfeiture of pay and dismissal from the Coast Guard. He was released in late November, 38 days ahead of schedule, for good behavior and exemplary conduct while incarcerated.

Limiting cross-examination, the appeal says, denied Smith his constitutional right of confronting his accusers, “of showing, through cross-examination, that (the female cadet) had lied before under similar circumstances and that she had a motive (indeed the same motive) to lie again.”

In addition to the three charges related to the female cadet’s testimony, the appeal argues for the court to reverse two other guilty findings from the court-martial: abandoning watch and failure to obey an order. Smith was acquitted on the other five original charges related to allegations of sexual misconduct made by different female cadets.

Smith, who is black, has claimed racial discrimination in his prosecution. He is now represented by a legal team from the prestigious international law firm of WilmerHale, which has a history of pro bono work in civil rights cases.

Smith could not be reached to comment, and his lawyers did not return phone calls Monday. The Coast Guard has until May 13 to file a response to the appeal.

Cmdr. Jeff Carter, a spokesman at Coast Guard Headquarters, said Monday the Coast Guard would not comment on the Smith case because it is pending litigation.

Smith has also filed a civil rights claim against Rear Adm. James C. Van Sice, former superintendent of the academy, and Capt. Douglas Wisniewski, the former commandant of cadets, saying they treated him differently from whites accused of sexual assault. That complaint was found to warrant further investigation and has been referred to an outside civil rights contractor for review.

Carter said Monday the Coast Guard could not comment on the status of that investigation because it is a pending personnel matter, but said the service would discuss it “when it has run its course.”

Smith’s new lawyers also say in the appeal brief before the Coast Guard Court of Criminal Appeals that they are investigating whether Van Sice, as the convening authority for Smith’s court-martial, may have committed “unlawful command influence” by referring to the case in a social conversation with one of the accusers expected to testify.

He allegedly told the unnamed female cadet, who was chatting about what her post-graduation command assignment would be, that he could be out of a job by then, because of the Webster Smith case.

The former superintendent’s remarks surfaced during an internal Coast Guard investigation of Van Sice that followed the Smith court-martial.

A witness to the conversation at a reception at the Superintendent’s Quarters gave a statement to investigators about it.

“With Van Sice to my left and the cadet to my right, to draw Van Sice into conversation, I said something close to, ‘Admiral, we were just talking about Cadet X getting her first choice for a cutter,’ ” the witness said. “Van Sice then responded, with a tone I remember as more sarcastic than joking, something close to the following … ‘Well, because of things going on here I probably won’t have a job next fall.’ At that point I glanced at the cadet who had stopped smiling and whose body language changed, e.g. she stiffened almost like coming to attention.”

The investigation of Van Sice eventually concluded, according to the Coast Guard’s public statements, that he made unspecified “inappropriate comments” in front of staff, and the Coast Guard Chief of Staff took “appropriate corrective administrative measures.” Van Sice, who was transferred from the academy before the investigation into his behavior was revealed, made a request to retire this year, which was granted.

•••••

The Coast Guard disclosed to Smith’s attorneys the specific remarks Van Sice was overheard telling the cadet at the reception. But other long narratives about Van Sice’s other remarks and behavior at the time of the prosecution of the Smith case were redacted — blacked out — from copies of the investigation report provided to the lawyers.

The Coast Guard says those are not relevant to the case.

The Court of Criminal Appeals agreed in late March to review the redacted material and determine whether it should be provided to Smith’s lawyers. That review is continuing.

Smith’s appeal, in addition to the claim that he was denied the right to cross-examination, asks that the three convictions related to the sexual encounter with the female cadet be reversed on other grounds:

• The sodomy conviction — he admitted to having consensual oral sex with the cadet — should be reversed because it is unconstitutional, the appeals argue. It cites the Supreme Court case of Lawrence vs. Texas, which upheld the right of adults to engage in private, consensual activity.

•The extortion conviction should be overturned because the prosecutors did not prove any direct link between the female cadet’s presumption of a threat — she said Smith told her he needed more “motivation” to keep her secret — and the sexual encounter, which occurred at a different time.

•On the count of leaving his watch, Smith’s lawyers argue that there were no written rules about staying in the Chase Hall dormitory at the end of one’s watch and no evidence that Smith knew of such a rule, written or implied.

“If anything, the evidence concerning actual orders and regulations suggested that (officer on deck) need not remain in Chase Hall after (10 p.m.). It certainly could not establish beyond a reasonable doubt that Cadet Smith actually knew the opposite to be true,” the appeal says.

•••••

The order by Wisniewski that Smith was convicted of disobeying — having indirect contact with a friend of one of the accusers, through an IM message — actually was made after the contact occurred, the brief alleges. In fact, Wisniewski’s original order was changed to include “indirect” as well as “direct” messages the day after Smith made the Instant Messaging contact with the accuser’s friend, and the change was made because of that message, the appeal suggests.

In addition to the trial errors, the appeal says that Van Sice improperly refused to explain his denial, immediately after Smith was sentenced, for a deferment of his confinement. Such denials are to be made in writing, the appeal says.

As a result, Smith was tightly handcuffed, led from his family and, while crying, paraded in front of his accusers and the media, who shouted questions. This “perp walk” capitalized on the media attention the school’s first court-martial received, the appeal says.

“There is no legitimacy whatsoever to this form of extra-judicial justice — one made possible only by Admiral Van Sice’s unexplained denial of Cadet Smith’s deferment request,” the appeal says.

“The harm from the admiral’s error is irreparable in the sense that Cadet Smith will always bear the memories of his humiliating and degrading experience.”

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April 24th, 2007 Posted by | Press | 6 comments

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