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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.
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.
The Webster Smith case was a “he said -- she said” case and for the charges on appeal, the critical question for the members was
ReplyDeletethe credibility of the sole prosecution witness. Evidence of a
motive to fabricate and that she had alleged that an earlier
consensual sexual encounter was nonconsensual in an attempt to
protect her career bore directly on her credibility as to the
allegations she made against Smith. It may have shown that she
had a propensity to lie about consensual sexual encounters when
her career was on the line. The materiality of this evidence is
not the “lurid nuances of the victim’s sexual past” as noted by
the majority, but rather the allegation that she had previously
lied about a sexual encounter under similar circumstances.
There can be no dispute that testing the credibility of a
witness through cross-examination is crucial to the right of
confrontation.
A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate
directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of his testimony.”