At this point in history when America had come far enough to elect a Black President why was this shining example of the best and the brightest of the African Americans of his generation denied the equal protection of the law? Why was he relegated to the second rail of military justice? On the second rail one receives "almost equal protection". Like much else in the law, equal protection is a myth for America's citizens of color. The myth gives one the illusion of fairness.
Could the answer have anything to do with the nature of the criminal justice system or the definition of crime? Crime is a legal concept, and the law creates the crimes it punishes. But, what creates the criminal law? Behind the law, above it, and surrounding it is our society. Before the law made certain behavior a crime, some aspect of social reality transformed certain behavior into a crime.
Justice is blind in the abstract. It cannot see or act on its own. It cannot create its own morals, principles and rules. That depends on society. Behind every legal determination of "guilty" lies a more powerful and more basic social and societal judgement, a judgement that this type of behavior is not acceptable. This type of behavior deserves to be prohibited and punished. Our society has long chosen to prohibit and punish interracial sex.
After society makes a social judgement that certain behavior, acts, or conduct is wrong, the criminal justice system goes to work. It refines and transforms the list of prohibited acts and behavior. It interprets the list of acts, and does whatever is necessary to catch, convict and punish the lawbreakers.
Bias is inevitable. Crime and punishment are highly charged, emotional, and political subjects. There is no way to wring prejudice, attitude, or race out of the system.
This was not a sexual assault case. Webster Smith did not sexually assault anyone. What he did was engage in an act of consensual love making with a friend. He was charged and tried; his partner was not. Why not? They both violated the Coast Guard Academy Cadet Regulations by engaging in sexual activities in Chase Hall, the cadet barracks.
An article published in the New London DAY newspaper on 20 February 2008 entitled “Service Academies faulted in GAO report,” stated: “In the summer of 2006, former cadet Webster Smith became the first student court-martialed at the Coast Guard Academy. He was acquitted of rape but convicted of extortion, sodomy and indecent assault.”
One might conclude that he was convicted of three of four charges. That is not correct. The truth is that of the 10 charges referred to the general court martial, Webster Smith was acquitted of one charge of rape, one count of extortion, one count of sodomy, one count of indecent assault and one charge of assault (five of 10 charges). All findings of guilty cited in the article related to one female.
That is only part of the story. The incidents related to Webster Smith were publicly announced as 16 pending charges in mid-February 2006. These charges concerned five women. In early 2006 the Coast Guard Investigative Service (CGIS) began an investigation related to yet another woman (SR) and Webster Smith. This resulted in six additional charges, filed in March 2006. An Article 32 Investigation resulted in dismissal of 12 of the 22 charges.
This means, 17 of 22 charged allegations were dismissed prior to trial (12 dismissals; five acquittals).( ,Esquire, Individual Military Attorney for Webster Smith.
The Judge found so many discretionary errors in the court-martial proceedings that he had no choice but to rule that Webster Smith had been denied a fair trial.
It was a classic case of "he-said, she-said". The trial came down to simply a credibility issue. The big question was who was telling the truth and who was not.
This was a question for the jury to decide. It was a fact question. The jury is the trier of facts. The court-martial judge (CAPT Brian Judge) went to extraordinary lengths to keep the question out of the hands of the jury. He took it upon himself to decide the issue of credibility. That is why Webster Smith was convicted.
The jury had no idea what the real issue was. They were kept in the dark. They were not given proper instructions. The judge decided who was the more credible witness. The judge abused his discretion.
The judge went beyond the authority and power delegated to him under the Uniform Code of Military Justice (UCMJ), and the Federal Rules of Evidence. Webster Smith was denied his Sixth Amendment Rights.
One does not have to read the Appeals Court decision to know that an accused at a court-martial has a right to cross-examine the witnesses against him. Anyone who has watched Perry Mason or Tom Cruise in the movie "A Few Good Men", would come away with an appreciation for the fact that the jury has the responsibility to decide what the facts are and who is not telling the truth.
When a judge does not allow the jury to do its job, he commits reversible error. When a judge confuses his duties with the duties assigned to the jury, then he has abused his discretion and that constitutes reversible error.
If the jury had only been allowed to follow the Yellow Brick Road and to resolve the credibility issue itself, then, at least, the trial of Webster Smith would have had some semblance of a fair trial. The trial judge, CAPT Brian Judge, was not taking any chances. He took matters into his own hands. He jumped onto the Scales of Justice and pulled them way down on the side of the Prosecution.
In a case where the principal witness was allowed to hide behind the military judge for protection from thorough cross-examination; and where facts and perceptions may have been dispositive of the ultimate issue, Truth can be elusive. In a case where a convincing and charming fabricator of facts can sway a jury that has not been fully informed, and where the jury has only been given some of the relevant facts, the judge left a lot of room for mischief on the part of a sneaky prosecutor. The judge left a lot of room for the imagination of the jury to run wild when he allowed the Prosecutor to introduce just enough evidence to put Webster Smith in a compromising position; but he denied the Defense lawyers an opportunity to explain the contradictions by cross-examining the principal witness. Then the judge left it to the jury to "connect the dots". This was terribly unfair to the accused, Webster Smith.
Webster Smith was reduced to "a bug under a glass jar" for inspection, and the principal witness was kept as snug as a bug in a rug. Eventually all of this discretionary "hokus-pokus" became so egregious as to eliminate any possibility of a fair trial for Webster Smith. Finding the Truth became next to impossible. This case should have been remanded for a new trial. To send the case back to the Superintendent of the Coast Guard Academy, the Convening Authority, for a new trial was the only fair way to remedy the errors that were committed in the court-martial of Webster Smith.
The Founding Fathers and the framers of the U S Constitution provided procedural safeguards for criminal defendents facing the awesome powers on the Federal Government. They gave him; among other rights, the right to remain silent, the right to trial by jury, and the right to confront and to cross-examine the witnesses against him. These rights are inalienable. These rights cannot be taken away; not by the Government, and certainly not by a part-time trial judge.
One judge on the Coast Guard Court of Criminal Appeals saw clearly how the legal system, the Sixth Amendment to the Constitution, and the Military Rules of Evidence were misused to deny Webster Smith a fair trial.
I believe a great travesty of justice was committed. A gross miscarriage of justice was done at the Coast Guard Academy. The entire process was flawed.
The only evidence was the word of a couple of incredible females. There was no physical evidence whatsoever.
Webster Smith has apologized for his behavior. Confession is good for the soul. It is the first step toward true rehabilitation. No one else involved in the entire episode showed such strength of character. The Academy is a character building institution.
Cadet Webster Smith was a victim of jealousy, racial discrimination, a violation of the 14th Amendment Equal Protection clause, and last but not the least, a victim of a double standard.
He was one of the most loved and respected cadets on campus. But he had two things going against him. One, he had dated the first female Regimental Commander, and the Dean of Admissions’ daughter. Both were white. Since they were white and Cadet Smith was Black, it did not sit well with the Commandant of Cadets.
Racial Prejudice is still very much alive at the Academy.
America's fighting men have come in many guises, shapes and sizes. They have had to fight all of America's enemies, both foreign and domestic. Cadet Webster Smith had to fight his own senior officers, friends, and mentors. In the end he was proud. He had fought the good fight. Even TIME magazine carried the quote of the first cadet in Coast Guard history to be tried by a General Court-martial.
Less than 60 days after the verdict was rendered in the Webster Smith case, I predicted that the case would make it all the way to the Supreme Court.
Supreme Court justices are not elected. They are appointed with the advice and consent of the Congress. The Nine Justices of the Supreme Court are the least democratic branch of the federal government. They have no constituency. They do not have to conform to the biases of the majority. They are the Court of Last Resort; so, they are infallible. With few exceptions, they have dealt with evenhandedly with all of America's citizens.
They do not have to sit for re-election. They are appointed for life. They are totally isolated from busy bodies on the Right or Left Side of the political spectrum. With one stroke of the pen, they may act to curb injustices, correct unsavory attitudes, and breathe new life into a living Constitution.
Historically we have looked to them to solve our most vexing social problems. They are America's ultimate arbiters of justice; and, that includes military justice.
Aside from the Webster Smith Case, I cannot think of any case or incident in Coast Guard history that affected more directly the hearts, minds, and daily lives of all members of the United States Coast Guard.
The U.S. Coast Guard Court of Criminal Appeals had to review the Webster Smith case. It had no choice. Article 66 of the Uniform Code of Military Justice, requires the Coast Guard Criminal appeals Court to review all cases of trial by court-martial in which the sentence as approved by the Convening Authority extends to dismissal of a cadet from the Coast Guard, and/or a dishonorable or bad conduct discharge, unless the accused waives appellate review. Webster Smith did not waive appellate review. He appealed his conviction. Oral arguments in the Case of The Appeal of the Court-martial Conviction of Cadet Webster Smith was scheduled for January 16, 2008 in Arlington, Virginia.
A legal brief filed by his lawyers claimed the convictions should have been thrown out because the defense team was not allowed to fully cross-examine one of his accusers during Smith's court martial. They said that meant the jury didn't hear testimony that the accuser, a female cadet, Shelly Roddenbush, had once had consensual sex with a Coast Guard enlisted man and then called it sexual assault. If she lied once, she very well could have lied again.
The Coast Guard Court of of Criminal Appeals is made up of Coast Guard Officers. It has the power to decide matter of both fact and law. Decisions of the Coast Guard Court of Criminal Appeals may be appealed to the Court of Appeals of the Armed Forces (CAAF). It is made up of five civilian judges, appointed to 15 year terms. It decides only issues of law. Its decisions may be appealed to the U. S. Supreme Court. The Webster Smith Case followed this long and winding path all the way to the Supreme Court.
The U.S. Supreme Court has refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment.
Webster Smith was proud of his decision to fight the good fight all the way to the end of the road. See TIME magazine June 29, 2006.