Comrades, Colleagues, and Patriots:
I urge you to read the excellent WorldNetDaily.com report by Eugene Koprowski entitled "Vets Protest Plan Opening Military To Homosexuals," on the Lame Duck Democrat Congress' destruction of "Don't Ask/Don't Tell" in favor of open homosexuality in the armed forces: http://www.wnd.com/index.php?pageId=243033
As a former enlisted man who joined the Army at the age 17, as do many recruits, I know about the enormous power of non-commissioned and commission officers over the lives of those in the enlisted ranks. I think it is unconscionable for members of House, Senate, and the White House to congratulate themselves on voting to compel young enlisted men and women to serve under openly practicing homosexual non-coms or officers, including predatory homosexuals, who may have a sexual rather than military interest in them, and who have enormous power to retaliate if their advances are rejected.
Just how does a young man or woman subject to military discipline, culture, and control, protect himself or herself, and seek redress, from unwanted sexual interest, advances, or assaults? A member of the military in the ranks is often at the mercy of non-coms or officers, including in duty assignments which can not only be the worst of unwanted duties but assignments which can put them in harm's way at risk of loss of limbs or life.
Simply stated: Military life is not civilian life. A victim of "sexual harassment," predation, or actual assault in the military cannot respond to such sexual abuse as can a person in civilian life. Enlisted personnel cannot, without great fear of retaliation, report a non-com or officer for homosexual misconduct. A member of the military cannot respond to an advance by a homosexual non-com or officer with crude language, or threats of physical action that would be used in a civilian situation. A member of the military cannot physically ward off unwanted homosexual contact by a non-com or officer without risk of court martial for a major crime, i.e., "assault on an officer." A member of the military cannot file a complaint with local police, or with local, state, or federal agencies enforcing anti-discrimination laws. A member of the military cannot sue a homosexual molester, or the predatory homosexual's employer, i.e., the military branch in which the victim serves. A member of the military cannot simply "quit and get another job" if subjected to unwanted homosexual attention by a superior, as a civilian can if harassed by a supervisor. Military personnel are in the their military branch for the duration of their period of enlistment, even if a homosexual clone of Chester the Molester is their platoon sergeant, First Sgt., or an Officer. One can't "resign" from the military because of unacceptable working conditions, including predatory homosexual superiors.
Consider: Just what does a 17-year-old heterosexual recruit, male or female, do when a 35-year-old same-sex predatory non-com or officer decides to join that 17-year-old in the shower, or bed, or latrine, or field tent, or common area, and not only "tell" about but act out his or her homosexuality?
For one personal example of homosexuality in the military, even when it was forbidden, when I was stationed at Ft. Bliss in Texas, I was dating a bright, young, woman as young as I was, who joined the Womens Army Corps because she grew up in extreme poverty in the South and thought the WAC would provide her with opportunities. Instead, she begged me to marry her to get her out of the WAC, which was possible then, and quickly divorce once she was out. Why? Because, even though she was not personally a victim -- she visibly had a man to protect her -- she couldn't take the almost nightly attacks on young WACs by older lesbian non-coms. In the barracks of Ft. Bliss in that Vietnam-era, such attacks were not silent affairs. Anyone who served in such barracks will understand what I mean about the acoustical effects of sexual activity.
I didn't marry that fine young woman as she asked, so she could escape from predatory homosexual female non-coms, but I have never forgotten her, or her anguish, anxieties, and disgust, at being caught in a situation in which she was under the control of predatory homosexual WAC non-coms and could not extricate herself from that situation. We even strolled about the WAC area arm-in-arm to make a display of our relationship and her heterosexuality, making it clear that she was attached to a man, if not engaged. She informed me that she deliberately told the other women that while I was a nice guy to her generally, I had a violent temper and was wildly jealous about her. Who knew what I might do if she was molested?
Truth was, at 17, she wasn't making it up. Like many others coming to the Army from some very rough streets in a Midwest steel town, I was a wild man; resistant to orders and barely controllable even under military discipline, which I admit I often observed in the breach. My one stripe was pulled off so often I stopped sewing it on and attached it with velcro--easier for the sergeant to pull off. Had I been advanced upon or assaulted by a homosexual in the Army, including a non-com or officer, at that still-wild age, there would have been mayhem, the consequences be damned. What are young heterosexual men and women in military service to do now that open homosexuality is not only not forbidden, it is approved?
I reflected much on the memory of my relationship at Ft. Bliss with that decent young WAC from the South who abhorred the homosexual reality she was trapped in, when my own elder daughter elected to follow in the footsteps of her great- grandfather, her grandfather, and her father (me) and join the military at 17 , right out of high school, in order to serve her country in this time of war against terrorism. She is the fourth generation in America and all four generations have served. Had the military by Act of Congress made acceptable and even advocated as a norm the kind of homosexual conduct I had witnessed pertaining to my WAC girlfriend described above, I would have done my best to dissuade my daughter from joining the service rather than risking that kind of homosexual degradation.
Does any one of those liberal "progressives" who voted to impose open homosexuality in the military seriously believe that homosexual predators can be kept out of the military, or controlled in it? Have the female members of House and Senate considered the impact on young women who will be exposed to predatory lesbian non-coms and officers, of which there is no shortage? Does anyone seriously believe that predatory homosexuals, male or female, will not be attracted to the armed forces, or remain in, with all those young "targets of opportunity" in the ranks, and Congress approving of open homosexuality?
Consider, especially, those troops in combat zones, and their parents and loved ones back home worrying about them. Just how much confidence can they have that their lives and limbs will be equally valued and defended if their officer or non-com, or fellow troop, is having a homosexual affair with one or more of the other troops? Can they have confidence that they are not at risk if some of the troops are in homosexual relationships with each other, or with non-coms or officers? Will non-coms and officers, or troops, who have a homosexual interest or relationship with one or more of the troops, not act to save their "significant others" before other troops? Can anyone say with confidence that a homosexual in a sexual relationship with a troop will not act to save that troop first, or otherwise favor that troop so as to keep him or her out of harms way as much as possible? In that regard, do men and women, no matter how decent, not act first to save their own spouses or children, rather than someone else's spouse or child, in a disaster, accident, or other life-threatening situation? Why would anyone think homosexuals would not act in the same way when the object of their homosexual love is the one at risk?
Liberal "progressives" are great at imposing on American citizens policies which cannot affect them. DA/DT is a prime example: Most in Congress modernly have not served in the uniform of their country. The present President of the United States never deigned to serve. He is only the second president of the modern era not to serve, other than liberal progressive Bill Clinton. Ironically, it was Clinton who in fact established DA/DT in his regime. Clinton never served, and distinguished himself, it should be remembered with disgust, by chatting on the phone with a member of Congress about troop decisions while being serviced below by Monica Lewinsky in the Oval Office. Why should anyone be surprised that such liberal "progressives" as Obama, the President Who Bows From the Waist, and Clinton, President Fellatio, would be in favor of elevating anal and oral intercourse to a norm in the military
We are told by the same Democrat Liberal Progressives who have destroyed DA/DT that open homosexuality in the military will not be a problem, including as to unit cohesion, putting enlisted men and women at risk, and that they can control homosexual predators. Really? Just look at Liberal Progressive Portland, the Principality of Political Correctness, which reportedly strongly supports abolition of DA/DT. Portland could not even keep its predatory homosexual Mayor Sam Adam from preying on a 17-year-old male intern in the City Hall Mens Room in the now infamous Beau Breedlove affair. What a field day such a homosexual predator would have in the closed military circumstance now that open homosexuality is to be the military norm.
Those voting for abolition of DA/DT and for the norming of open homosexual conduct as acceptable in the military, all those politicians in House and Senate and the President-Who-Never-Served, are preening in their self-righteousness in establishing a military policy which will never affect them, and is unlikely to affect their sons and daughters, since the progeny of those liberal "progressive" legislators are unlikely to have an economic incentive to join the armed forces.
I believe that the incoming 112th Congress should repeal this Lame Duck Democrat Liberal Progressive destruction of DA/DT. Such fundamental changes in the military culture, and the Military Code of Justice, and leave it to the military to decide what to do and how to do it. The the most important voice in the ultimate decision should be the members of the military most immediately affected, -- combat troops.
The ultimate decision should not be made by liberal self-defined "progressive" politicians, bureaucrats, self-interested predatory homosexuals like Portland's Progressive Mayor Sam Adams, or military personnel far from combat and unlikely to have to depend on a homosexual with a sexual interest in him or her or in some other troop with whom they may have a homosexual crush or be a bedmate.
Further, unless and until the action of the Lame Duck Obama-Reid-Pelosi 111th Congress is repealed, every member of the House and Senate, as well as Obama, He Who Bows From The Waist, and his White House gaggle of liberal "progressives" creating their Brave New Homosexual Military World, should be compelled to shower daily with the homosexual Barney Frank in the Congressional gym. If they won't do that, then they should not inflict a similar fate on members of the American military, and their families.
Indeed, Americans should repeal the Lame Duck Democrat DA/DT destruction in the 112th Congress, and repeal of them in House and Senate who voted for it, and real him who so gushingly signed it, in the 2012 election.
In support thereof, I urge you again to read the report in WorldNetDaily.com by Eugene Koprowski on the growing response of troops and veterans to open homosexuality in the military: http://www.wnd.com/index.php?pageId=243033
--Rees
REES LLOYD
(Life Member and Judge Advocate, Riverside Post 79; Past Commander District 21 (Cal.); Director and Attorney, Defense of Veterans Memorials Project of The American Legion Department of California.*) [*For purposes of identification only. The views expressed herein are solely those of Rees Lloyd and not any person, organization, or entity he may otherwise represent.)
Thursday, December 30, 2010
Monday, December 13, 2010
ObamaCare Ruled Unconstitutional By Virginia Federal Judge.
RICHMOND - A federal judge in Virginia ruled 13 December 2010 that a key provision of the nation's sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama's signature domestic initiative.
U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.
In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.
"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]
Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.
The ruling comes in a case filed by Virginia Attorney General Ken Cuccinelli II (R), who said he was defending a new state statute that made it illegal to require people to carry health insurance in Virginia.
"I am gratified we prevailed," Cuccinelli said in a statement. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."
Federal officials responded that they are confident the statute will ultimately be upheld. A victory for Cuccinelli at this early legal stage means no more for the law's fate than previous rulings that have found the opposite, they have argued.
"We are disappointed in today's ruling but continue to believe - as other federal courts in Virginia and Michigan have found - that the Affordable Care Act is constitutional," Tracy Schmaler, a spokeswoman for the U.S. Department of Justice, said in a statement. "There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law, and we are confident that we will ultimately prevail."
At the White House, spokesman Robert Gibbs pointed to the other rulings in favor of the individual mandate. "We are confident that [the individual mandate] is constitutional, he said. "We disagree with the ruling."
According to a new Washington Post-ABC News poll, a slim majority of all Americans - including almost all Republicans - oppose the health-care reform law. But the legislation's detractors are split on whether and how much of it should be rolled back.
Overall, 52 percent of those polled oppose the overhaul to the health-care system; 43 percent are supportive of it. Fully 86 percent of Republicans are against the legislation; 67 percent of Democrats support it. Independents divide down the middle, with 47 percent in favor and the same number opposed.
Most of those who oppose the health-care changes - 59 percent - want the law repealed, but 38 percent would prefer a "wait and see" approach. Democrats who oppose the law generally support waiting to see how the law operates, while most Republicans would prefer to see it repealed.
Republicans, though, are divided about whether the pullback should be a total repeal or only a partial one. Among Republicans opposed to the health-care package, 39 percent want a complete repeal, and 32 percent want to cancel parts of the law.
In large part, the mixed approach to amending the legislation reflects high Republican support for components of the legislation.
The Virginia suit is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.
The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.
The ruling by Hudson, an appointee of President George W. Bush's, was widely anticipated based on tough questions he lobbed at Obama administration lawyers in oral arguments in his Richmond courtroom.
But the legal defeat will deal a significant political blow to the law, cheering those who have predicted its demise will come from adverse legal rulings rather than congressional repeal.
The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.
He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.
A senior administration official has called that route "very unusual," noting that another suit is already pending before the Fourth Circuit, but declined to take the issue entirely off the table.
U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.
In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.
"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]
Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.
The ruling comes in a case filed by Virginia Attorney General Ken Cuccinelli II (R), who said he was defending a new state statute that made it illegal to require people to carry health insurance in Virginia.
"I am gratified we prevailed," Cuccinelli said in a statement. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."
Federal officials responded that they are confident the statute will ultimately be upheld. A victory for Cuccinelli at this early legal stage means no more for the law's fate than previous rulings that have found the opposite, they have argued.
"We are disappointed in today's ruling but continue to believe - as other federal courts in Virginia and Michigan have found - that the Affordable Care Act is constitutional," Tracy Schmaler, a spokeswoman for the U.S. Department of Justice, said in a statement. "There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law, and we are confident that we will ultimately prevail."
At the White House, spokesman Robert Gibbs pointed to the other rulings in favor of the individual mandate. "We are confident that [the individual mandate] is constitutional, he said. "We disagree with the ruling."
According to a new Washington Post-ABC News poll, a slim majority of all Americans - including almost all Republicans - oppose the health-care reform law. But the legislation's detractors are split on whether and how much of it should be rolled back.
Overall, 52 percent of those polled oppose the overhaul to the health-care system; 43 percent are supportive of it. Fully 86 percent of Republicans are against the legislation; 67 percent of Democrats support it. Independents divide down the middle, with 47 percent in favor and the same number opposed.
Most of those who oppose the health-care changes - 59 percent - want the law repealed, but 38 percent would prefer a "wait and see" approach. Democrats who oppose the law generally support waiting to see how the law operates, while most Republicans would prefer to see it repealed.
Republicans, though, are divided about whether the pullback should be a total repeal or only a partial one. Among Republicans opposed to the health-care package, 39 percent want a complete repeal, and 32 percent want to cancel parts of the law.
In large part, the mixed approach to amending the legislation reflects high Republican support for components of the legislation.
The Virginia suit is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.
The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.
The ruling by Hudson, an appointee of President George W. Bush's, was widely anticipated based on tough questions he lobbed at Obama administration lawyers in oral arguments in his Richmond courtroom.
But the legal defeat will deal a significant political blow to the law, cheering those who have predicted its demise will come from adverse legal rulings rather than congressional repeal.
The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.
He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.
A senior administration official has called that route "very unusual," noting that another suit is already pending before the Fourth Circuit, but declined to take the issue entirely off the table.
Friday, December 10, 2010
Was Justice Served In The Webster Smith Case? Is Justice Just Us?
http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021
A final judgement has been entered in the Case of Cadet Webster Smith. He fought a good fight; he kept the faith; and, he exhausted his judicial remedies.
Hard cases make bad law. In this case, the facts were not so hard to distinguish as the defendant was of the wrong persuasion.
IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA
No. 10-18
Title: Webster M. Smith, Petitioner
v.
United States
Docketed: June 30, 2010
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (08-0719)
Decision Date: March 29, 2010
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 28 2010 Petition for a writ of certiorari filed. (Response due July 30, 2010)
Jul 30 2010 Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jul 30 2010 Brief amicus curiae of United States Army Defense Appellate Division filed.
Oct 28 2010 Brief of respondent United States in opposition filed.
Nov 5 2010 Reply of petitioner Webster M. Smith filed. TBP
Nov 8 2010 DISTRIBUTED for Conference of November 23, 2010.
Nov 29 2010 Petition DENIED.
--------------------------------------------------------------------------------
~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Daniel S. Volchok Wilmer Cutler Hale and Dorr LLP (202) 663-6000
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Party name: Webster M. Smith
Attorneys for Respondent:
Neal Kumar Katyal Acting Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ
Party name: United States
Other:
Jonathan L. Marcus Covington & Burling, LLP (202) 662-6000
1201 Pennsylvania Avenue, NW
Washington, DC 20004
jmarcus@cov.com
Party name: National Association of Criminal Defense Lawyers
Jonathan F. Potter Senior Appellate Counsel United States Army (703) 588-6717
Defense Appellate Division
901 N. Stuart Street
Arlington, VA 22203
jonathan.potter@conus.army.mil
Party name: United States Army Defense Appellate Division
The only cadet court-martialed in the 130-year history of the Coast Guard Academy has run out of options to appeal his conviction.
Cadet Webster Smith already served time behind bars, but continued to fight all the way to the U.S. Supreme Court.
After more than four years, the Smith case is over. The former Coast Guard cadet hit a dead end when the U.S. Supreme Court has decided not to hear his final appeal.
Smith was acquitted of rape charges, but served five months in a military prison after being convicted of sodomy, extortion and other charges.
He was also kicked out of the Coast Guard Academy.
Smith has claimed in multiple appeals that his constitutional rights were violated at his trial.
He said he wasn't allowed to ask one of the female cadets who accused him of rape about her past, saying he wanted to show that the woman known as Cadet S.R., had a motive to lie about what happened with Smith.
He claimed their sexual encounter was consensual.
Since the nation's high court has declined to hear Smith's case, the final judgment comes from the U.S. Court of Appeals for the armed forces.
In March the court ruled that his conviction should stand, saying "further cross-examination of Cadet S.R. was not 'constitutionally required.'"
Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment.
Congress is deadlocked; the President is weakened; and, the Supreme Court does not appear to be in a mood to settle conflicts of law between the Circuit Courts. Since nature abhors a vacuum, this may be a good time to legislate from the bench.
This case implicates a deep 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 crossexamination
of Shelly. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo,
reserving abuse-of-discretion review for nonconstitutional
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 crossexamination]
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 this case perpetuates 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 at issue warranted resolution
by the Supreme Court. The constitutionality of restrictions
on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established;
there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one
standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".
Also, disuniformity created by the conflict directly
affects a fundamental individual right. Some defendants
in criminal cases enjoy less protection of the critical
right to confront their accusers because of the fortuity
of where their trials were held,or, as to cases decided
by CAAF, because they have chosen to wear the nation’s uniform.
The Webster Smith case presented a good vehicle to resolve the circuit
conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality
of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent
with the Sixth Amendment, Webster Smith would have prevailed.
Smith now lives in Austin, Texas, with his wife and daughter. He's required to register as a sex offender there for the rest of his life.
Justice truly was not served in this case. What is happening in America?
What happened to Freedom of Speech and Freedom of the Press? With the dumbing-down of the American educational system, most Americans now seem to know little and care less about their fundamental freedoms and civil liberties. Some believe that the police have a right to enter their homes without probable cause or a warrant. They do not believe that they have the right to "just say No".
In the Land of the Free and the Home of the Brave fundamental freedoms are being challenged as never before. Senators on Capitol Hill sound like a lynch mob calling for the head of the Wikileaks leader who published diplomatic cables on the internet. Many of the cables were little more than embarassing gossip. Yet, the administration that came into town riding the "transparency in government" horse are scrambling to keep its in-house chatter secret. We have not seen this much ado about release of tapes and documents since Richard Nixon and Alexander Butterfield let the cat out of the bag with the Watergate Tapes brew-ha-ha.
A final judgement has been entered in the Case of Cadet Webster Smith. He fought a good fight; he kept the faith; and, he exhausted his judicial remedies.
Hard cases make bad law. In this case, the facts were not so hard to distinguish as the defendant was of the wrong persuasion.
IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA
No. 10-18
Title: Webster M. Smith, Petitioner
v.
United States
Docketed: June 30, 2010
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (08-0719)
Decision Date: March 29, 2010
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 28 2010 Petition for a writ of certiorari filed. (Response due July 30, 2010)
Jul 30 2010 Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jul 30 2010 Brief amicus curiae of United States Army Defense Appellate Division filed.
Oct 28 2010 Brief of respondent United States in opposition filed.
Nov 5 2010 Reply of petitioner Webster M. Smith filed. TBP
Nov 8 2010 DISTRIBUTED for Conference of November 23, 2010.
Nov 29 2010 Petition DENIED.
--------------------------------------------------------------------------------
~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Daniel S. Volchok Wilmer Cutler Hale and Dorr LLP (202) 663-6000
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Party name: Webster M. Smith
Attorneys for Respondent:
Neal Kumar Katyal Acting Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ
Party name: United States
Other:
Jonathan L. Marcus Covington & Burling, LLP (202) 662-6000
1201 Pennsylvania Avenue, NW
Washington, DC 20004
jmarcus@cov.com
Party name: National Association of Criminal Defense Lawyers
Jonathan F. Potter Senior Appellate Counsel United States Army (703) 588-6717
Defense Appellate Division
901 N. Stuart Street
Arlington, VA 22203
jonathan.potter@conus.army.mil
Party name: United States Army Defense Appellate Division
The only cadet court-martialed in the 130-year history of the Coast Guard Academy has run out of options to appeal his conviction.
Cadet Webster Smith already served time behind bars, but continued to fight all the way to the U.S. Supreme Court.
After more than four years, the Smith case is over. The former Coast Guard cadet hit a dead end when the U.S. Supreme Court has decided not to hear his final appeal.
Smith was acquitted of rape charges, but served five months in a military prison after being convicted of sodomy, extortion and other charges.
He was also kicked out of the Coast Guard Academy.
Smith has claimed in multiple appeals that his constitutional rights were violated at his trial.
He said he wasn't allowed to ask one of the female cadets who accused him of rape about her past, saying he wanted to show that the woman known as Cadet S.R., had a motive to lie about what happened with Smith.
He claimed their sexual encounter was consensual.
Since the nation's high court has declined to hear Smith's case, the final judgment comes from the U.S. Court of Appeals for the armed forces.
In March the court ruled that his conviction should stand, saying "further cross-examination of Cadet S.R. was not 'constitutionally required.'"
Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment.
Congress is deadlocked; the President is weakened; and, the Supreme Court does not appear to be in a mood to settle conflicts of law between the Circuit Courts. Since nature abhors a vacuum, this may be a good time to legislate from the bench.
This case implicates a deep 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 crossexamination
of Shelly. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo,
reserving abuse-of-discretion review for nonconstitutional
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 crossexamination]
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 this case perpetuates 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 at issue warranted resolution
by the Supreme Court. The constitutionality of restrictions
on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established;
there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one
standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".
Also, disuniformity created by the conflict directly
affects a fundamental individual right. Some defendants
in criminal cases enjoy less protection of the critical
right to confront their accusers because of the fortuity
of where their trials were held,or, as to cases decided
by CAAF, because they have chosen to wear the nation’s uniform.
The Webster Smith case presented a good vehicle to resolve the circuit
conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality
of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent
with the Sixth Amendment, Webster Smith would have prevailed.
Smith now lives in Austin, Texas, with his wife and daughter. He's required to register as a sex offender there for the rest of his life.
Justice truly was not served in this case. What is happening in America?
What happened to Freedom of Speech and Freedom of the Press? With the dumbing-down of the American educational system, most Americans now seem to know little and care less about their fundamental freedoms and civil liberties. Some believe that the police have a right to enter their homes without probable cause or a warrant. They do not believe that they have the right to "just say No".
In the Land of the Free and the Home of the Brave fundamental freedoms are being challenged as never before. Senators on Capitol Hill sound like a lynch mob calling for the head of the Wikileaks leader who published diplomatic cables on the internet. Many of the cables were little more than embarassing gossip. Yet, the administration that came into town riding the "transparency in government" horse are scrambling to keep its in-house chatter secret. We have not seen this much ado about release of tapes and documents since Richard Nixon and Alexander Butterfield let the cat out of the bag with the Watergate Tapes brew-ha-ha.
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