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    Local Columns
    Monday, May 13, 2024

    Could Supreme Court put focus on NL again?

    Imagine if the U.S. Supreme Court were to step in some time soon to spotlight another New London injustice?

    This time, though, maybe the court could actually help right a wrong, rather than simply draw the nation's attention to one, the taking by the city, in that previous case, of people's homes by the misguided powers of eminent domain.

    In the newest possible case, Webster Smith, the black Coast Guard Academy cadet who was court-martialed here four years ago on bogus sexual misconduct charges, is taking his appeal to the Supreme Court.

    Attorneys for the international law firm WilmerHale, which has been representing Smith pro bono since his 2006 conviction, this summer filed a petition for certiorari with the high court. The justices could take up the case this fall.

    The appeal to the Supreme Court, after military court appeals were exhausted, is an enormous long shot. But the petition, which has garnered some notice in the legal community and was the subject of a long piece in the National Law Journal, has been supported by briefs from the National Association of Criminal Defense Lawyers and U.S. Army defense attorneys who represent soldiers in legal appeals of courts martial.

    Smith's legal team, the Law Journal respectfully notes, includes lead counsel Daniel Volchok, a former clerk to former U.S. Justice David Souter, and former Solicitor General Seth Waxman, a partner at WilmerHale, as well as the some of the firm's Supreme Court heavyweights.

    The Webster Smith case, for those who don't remember it well, gave the academy's reputation a serious black eye.

    Rear Adm. James C. Van Sice, the superintendent at the time, beat a hasty retreat to retirement after the Smith trial. An internal Coast Guard investigation at the time revealed that he had made "questionable" comments to one of Smith's accusers prior to the court martial, suggesting the detrimental effect the trial was going to have on his own career.

    A task force formed by the Coast Guard after the trial concluded that the academy had lost its mission, that there was a strong link between sexual assault and alcohol abuse on campus and that minority cadets felt marginalized and mistrustful of the administration.

    Of course the harsh disciplining of Smith, the first cadet to be court martialed in the school's 130-year history, had terrible racist overtones from the start. There was no prior misconduct by all those white cadets over all those years?

    The story has the makings of a Hollywood blockbuster.

    Smith, the smart, overachieving son of an academy graduate, star of the football team, had begun dating one of the leading female cadets at the academy, the darling of faculty and administrators. She is white.

    She got pregnant and had an abortion, and it didn't take long for an investigation to come down hard on Smith, who was separated from the cadet population and made to do hard labor while not in class. This was at a school where later studies showed sexual fraternization was rampant.

    Most of the many charges lodged against Smith eventually washed away, found to have no merit. He was convicted of only four of 10 finally brought against him at trial.

    Some of the charges seemed preposterous at trial. A one-time girlfriend admitted at trial to being so intoxicated in one encounter for which Smith was accused that she couldn't even remember what happened.

    Another admitted being kissed at a party but continued a friendly relationship with Smith afterwards.

    He was convicted finally on the testimony of a female cadet who it turns out had lied in the past about the consensual nature of a sexual encounter she had. But the judge at Smith's trial did not let the jury hear about this previous sexual encounter or allow Smith's attorneys to delve into it in cross examining her.

    Smith lawyers, one of the cadet's early appeals noted, "were precluded from showing that the (accuser) had very recently been doing to another man precisely what the defense wanted (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."

    Smith's current petition to the Supreme Court focuses on the standards courts apply in reviewing cross examinations, and the Law Journal articled suggests this - the Sixth Amendment's confrontation clause - is an area of law in which the chief justices have been "particularly active."

    To a lay person, it certainly seems that Smith's accuser should have been cross examined about a prior sexual experience she characterized as an assault to avoid discipline.

    The Coast Guard Academy has changed a lot in the four years that Smith was convicted.

    The former superintendent is not the only one who has left, and presumably some of the post-trial reforms that were instituted are helping improve the school's atmosphere. One could certainly hope minorities feel less marginalized.

    I am sure it would help if Webster Smith could finally be vindicated, too, especially if it starts with an intervention by the country's highest court.

    This is the opinion of David Collins

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