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.
On
Dec. 4, 2005 an officer on duty at the United States Coast Guard
Academy (USCGA) received an allegation of sexual misconduct from a
cadet, setting off an inquiry by the Coast Guard Investigative Services
(CGIS), based in Washington, D.C..
The commandant of cadets,
Captain Douglas Wisniewski, took immediate action to initiate the
investigation into these allegations.
Sexual misconduct at the
USCGA is defined as "acts that disgrace or bring discredit on the Coast
Guard or Coast Guard Academy and are sexual in nature, including lewd
or lascivious acts, indecent exposure or homosexual conduct."
But
the definition also includes consensual acts that are prohibited on
Academy grounds, such as holding hands, kissing in public or having sex.
Cadet
First Class Webster Smith was charged with sexually assaulting six
female cadets in Chase Hall, the cadet living quarters at the United States Coast Guard Academy, and in other
locations.
An
Article 32 Investigation was convened on March 21, 2006
to determine
whether there was probable cause to convene a court-martial to prosecute
the charges. The Investigating Officer received the testimony of seven
female cadets who accused Cadet Smith of assaulting them between May and
November 2005.
The USCGA Superintendent, Admiral James Van Sice,
decided to refer the charges against Cadet Smith to a General
Court-martial. In his opening statement to the Jury Panel on June 26,
2006 the prosecutor described Cadet Smith as a manipulative senior who
preyed on lonely women.
Cadet
Smith of Houston, Texas
pleaded not guilty in the first court-martial
of a cadet in Coast Guard Academy history. The charges ranged from rape,
sodomy, and extortion to assault of the female cadets.
Cadet
Smith was tried before
a jury panel of Coast Guard officers including
four white men, one white woman, three Black men and a man of Asian
descent. The senior member was a captain with command experience.
There
were no cadets on the panel. Since there were no cadets on the jury
panel, it can truly be asked whether he was afforded a jury of his
peers.
Were the best qualified members appointed to the panel, as the
Manual For Courts-martial (MCM) and UCMJ mandate?
The
Uniform Code of Military Justice (UCMJ), (10 USC sec.801 et seq.)
supplemented by the Manual For Courts-martial (MCM) provides guidance
for a commander empowered to convene a court-martial. The UCMJ and the
MCM both contain the following sentence:
"When convening a court-martial the convening authority shall detail as
members thereof, such members of the armed forces as, in his opinion,
are best qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament". (UCMJ Art.
25(d)(2).
I have made this or a similar argument many times while defending
service members in courts-martial. None of the members of Webster
Smith's jury panel had been a cadet at the USCGA while female cadets
were living in Chase Hall. Only one had ever attended the USCGA; none
had socialized with female cadet; none had attended cadet athletic
parties; none had read the cadet regulations; none had counseled a cadet
concerning sexual assault; none had first-hand experience with the four
class system; none had indoctrinated female cadets; and none had ever
had a girl friend who was the first female brigade commander, who got
pregnant, had an abortion, and continued to date the putative father for
another six months before she was counseled by Coast Guard lawyers that
she might have been raped at some point during her 18 month
relationship with the accused in this court-martial.
If, at least, one cadet had been on that jury, he could have explained
to the members during deliberations many of the things that they were
completely ignorant of. I contend that the jury did not have a clue as
to what living conditions were like in Chase Hall, nor did they know
what the social environment was like between Black male upper-class
cadets and white female cadets in any of the four classes.
That being the case, the jury was not composed of the best qualified
people available in accordance with the UCMJ and Art 25(d)(2).
On
June 28, 2006 after about eight hours of deliberation, the panel found
Cadet Webster Smith guilty of indecent assault, extortion in exchange
for sexual favors and sodomy, which in military parlance includes oral
sex. All those charges involved one of the four accusers.
Cadet Smith was sentenced to be separated form the service and to spend six months in jail at a Navy brig.
This
was not a rape case. Many senior Coast Guard officers tried to portray
it as such. Webster Smith was not and is not a rapist. The
court-martial, with all of its faults, proved that this was not a rape
case.
Neither
was Webster
Smith a sexual predator as he was called. He simply refused
to stay on his side of the color-line. Someone felt that a message had
to be sent; a lesson had to be taught. Just as East is East and West is
West, and never the twain shall meet; the Coast Guard Academy was not
going to become a breeding ground for miscegenation.
The
U.S. Supreme Court refused to hear the appeal of the conviction of
Webster Smith, the only Coast Guard Academy cadet ever court-martialed.
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.
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 of Appeals for the Armed Forces' (CAAF) minority opinion,
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.
Why
was Cadet 1st Class Webster Smith investigated, charged, tried, and
convicted? Why must this talented young man register as a sexual
offender for the remainder of his life? Why did he not find any justice
in the military justice system? How could his case go through the entire
appeal's process and end up at the United States Supreme Court without
being granted any relief? Why would Janet Napolitano, Secretary of
Homeland Security refuse to grant clemency in a case that clearly cries
out for justice? (Get the answer. Read:
http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021)
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.
The Webster Smith Story Is An American Tragedy.
The Webster Smith Story is an American tragedy. It is not just the story
of a Black Coast Guard Academy cadet; it is the story of an American
family. It is the story of his mother, Belinda; and his father, Cleon;
his wife, Lindsey and their daughter; and of his sister and brothers. It
is the story of the friends of Webster Smith. They have all been harmed
by the violence directed at their son, brother, husband, father and
friend.
At the Coast Guard Academy, Webster Smith was a member of the Eclipse,
Track Team, Football team, Regimental Staff, and a Swab summer Staff. He
represented the Coast Guard in Washington DC concerning fitness and
nutrition programs. He received numerous silver stars and never received
a demerit prior the incident and investigation in 2005 that led to his
court-martial.
To his classmates, teachers, and coaches Webster Smith appeared to be a
magnetic, charming and gifted man, who had risen above his
circumstances. Yet, in a moment, as if in the twinkling of an eye, a
swift series of events diminished his popularity, vilified his name, and
assailed his honor. His image was converted by senior Coast Guard
officers from a popular athlete and nice guy to that of a sexual
predator and public enemy number one at the Coast Guard Academy.
Webster Smith had dared to dream some big dreams. Like Alex Haley he had
dared to believe that he could rise in the USCG to the highest level to
which his talents and initiative could take him.
His parents were middle class African Americans. His father, Cleon
Smith, was a graduate of the Coast Guard Academy in the Class of 1978
along with Vice Admiral Manson K. Brown.
His mother, Belinda Ingram Smith, believed in God and a good education.
After attending college at WSSU for four years she went on to become the
first Black female Crime Scene Investigator in the history of the
Winston-Salem police Department.
This unbelievable turn about in what had been a Black success story is a singularly American tragedy.
That a cadet so deeply respected and loved by his coaches and classmates
could evoke such an outpouring of hate and anger from the senior
officers at the Coast Guard Academy is a Coast Guard tragedy and an
American tragedy.
All of the female cadets involved with and associated with Webster Smith
escaped clean without any consequences for their actions or their
behavior. Mother Nature was the only one who exacted a penalty. Natural
Law resulted in a pregnancy for his girlfriend. An abortion followed.
If women are equal, they should be treated as equal. Not a single woman
was disciplined under the UCMJ or the cadet regulations. All of the
female cadets involved in the Webster Smith case graduated and were
commissioned as Coast Guard officers. Their testimony at the
court-martial painted a picture of female cadets who were untrustworthy,
arrogant, and certainly not ladies. Their conduct was unbecoming an
officer and a lady. (Read more at www.judgelondonsteverson.com)
These women were witnesses at a public trial yet they were accorded the
equivalent of rape shield protection. This was not a rape case. Not one
of the women had been raped. There was testimony of consensual sex acts.
Some of the consensual sex acts were unlawful because, among other
things, they occurred in Chase Hall, or at Academy functions. How could
unlawful consensual sex acts result in charges against only one of the
participants? It takes two to tango.
Is it wrong for Black people to ask if there is a double standard? Would
that amount to paranoia on the part of Black people? Or would that be
considered playing the race card simply to inquire? Is it absurd to
believe that anything more than pure chance resulted in the
court-martial of Webster Smith? The fact that he was court-martialed
speaks to a social reality that African-Americans are acutely aware of
in America. Race is not a card to be dealt, but it determines whom the
dealer is and who gets dealt a losing hand.
According to a 2008 General Accounting Office Report, from 2003 to 2006
there were NO sexual-harassment complaints at the Coast Guard Academy,
but there were 12 incidents of sexual assault reported to the Coast
Guard Investigative Service (CGIS), with one incident in 2003, one in
2004, “NONE” in 2005 and 10 in 2006. It is hard to conceive of the facts
relied upon by, Captain Douglas Wisniewski, the Commandant Of Cadets
when he asserted in 2005 that there was a climate of fear of sexual
assault in Chase Hall.
The 10 incidents reported in 2006 would appear to have occurred after
the Webster Smith court-martial. Webster Smith was removed from Chase
Hall in 2005. Who was doing all of the sexual assaulting in 2006? Why
were none of these people brought to justice? They could have been tried
along with Webster Smith.
The U.S. Supreme Court refused to hear the appeal of Webster Smith. The
justices declined to hear the case without comment. The decision of the
Court of Appeals for the Armed Forces (CAAF) became the final decision
in the case.
Thirteen female cadets and 11 males at the U.S. Coast Guard Academy
(CGA) reported anonymously in an April 2008 survey that they experienced
“unwanted sexual contact,” ranging from touching to forced sexual acts,
during the 2007-08 school year.
More than three-quarters said that alcohol or drugs were involved and that the offender was a fellow cadet.
None of the women sought professional help and only 7 percent discussed the incident with authorities.
When Alexander Hamilton organized the Revenue Cutter Service in 1790 it
was established in the Department of the Treasury. Later it became known
as the Coast Guard. In 1966 it was placed in the Department of
Transportation. Today it is the nucleus of the Department of Homeland
Security. Webster Smith's case is currently being reviewed for clemency
by the Secretary of the Department of Home Land Security, Janet
Napolitano.
Webster Smith would have made an excellent military officer. It is
Webster Smith and people like him that I want on the wall as our last
line of defense for our American way of life protecting us from the
great unwashed horde that is coming. Secretary Napolitano who do you
want on that wall?
When
the Supreme Court rejected Smith’s petition seeking a hearing on the
case, it effectively made the
CAAF’s decision the final decision in the
case.
(By
USALJ-ret. )
(April Foley was President George Bush's Ambassador to Hungary until 2009)
(650x433).jpg)
