“Three Days in August” how a Special Forces Medic was railroaded by German protection laws.

Crossposted.

On August 22, 2008, Army Special Forces soldier Kelly A. Stewart made a huge mistake: he had a one night stand with a woman who was not his wife (who is herself another soldier). It’s a mistake he’s been paying for over the intervening 3+ years, and will be paying into the future. But was the punishment equal to the mistake? That’s the central question posed by “Three Days in August: A U.S. Army Special Forces Soldier’s Fight for Military Justice” by Bob McCarty.

I actually read this book on my vacation in Cabo all the way back in October, but haven’t really been able to get thoughts on paper about it until now. I can’t say it ruined my vacation or anything, but the book is incredibly troubling on many different levels. I’ve tried to get some ancillary information from sources I have within the military justice system, but most folks were either ignorant on what happened here, or happened to be somehow involved, and were thus loathe to discuss it.

Either way, the book excellently identifies an issue that needs to be addressed. After the one night stand, two months went by before the woman that SFC Stewart met at the discotheque and brought home decided that she had been kidnapped and raped. From the website devoted to the book:

During court-martial proceedings one year later, Stewart faced an Army court-martial panel comprised of soldiers who had recently returned from a 16-month deployment with the Army attorney serving as Stewart’s lead prosecutor.

Despite a lack of both physical evidence and eyewitnesses to the alleged crimes, it took only two days for the panel to find Stewart guilty of numerous sex offenses and another day for them to sentence him to eight years behind bars.

Incredibly, the conviction was based almost entirely on the testimony of Stewart’s accuser, a one-time mental patient who, with the backing of the German government, refused to allow her medical records to be entered as evidence.

The first complaint of Mr McCarty in the book with regards to the jury seemed interesting to me, and it was the one point that an Army JAG took issue with in an email. As he pointed out, this isn’t entirely out of the ordinary for the military justice system, and also has an analogous occurrence in the civilian court system. In many areas, voters will elect a County Prosecutor who work cases within his jurisdiction, and thus folks on the jury will have either voted for the prosecutor already (thus having positive feelings towards the prosecutor presumably) or have voted against him, and thus likely be predisposed to oppose him. The JAG I talked to didn’t think much of this argument. Admittedly, I was with McCarty on this when I first read it, but I also see the point the JAG was making. I don’t know that if I was on a jury that the presence of the JAG I had in the army would make any difference. To be honest, I don’t even know who our assigned JAG was.

But the lack of evidence argument that he makes *IS* very compelling. Not only was this a he said/she said situation, it also requires that you accept her version of events almost exclusively. For instance, during the “crime” at one point SFC Stewart went and took a shower, leaving the “victim” in the bedroom, a bedroom that contained a telephone. As a member of a jury, it would seem somewhat odd to me that in the middle of a vicious sexual assault that the victim would a) be left with the means to contact others, b) be left with the means to exfiltrate the scene of the crime, and c) would avail herself of neither of these options. Nonetheless, the jury clearly believed her version over his.

The real travesty of this case comes not in what they heard, but rather what they didn’t hear, to wit, the fact that the victim had spent a significant amount of time in a mental health facility and that part of her pathology dealt with her ability to tell the truth. As in some areas in the United States, Germany has its own victim protection laws. Theirs allows victims of sexual assault to shield from disclosure any medical records. There is, of course, generally a good public policy argument for these laws. It’s often stated that Defense Attorneys will first try to impugn the victim, and that as such is the case, reporting of such crimes goes down, as the victim herself (or himself) thus ends up on trial. My own personal view is that this is a bit overstated, but even if it isn’t, at what point do the victims’ rights to privacy trump the right of an accused to put forth a just legal defense? Either way, generally the court will do an “in camera” review of the evidence to make sure that there isn’t something in the records that would impact the trial. But in this case, because of the German law, the court was never allowed to even look at the records. In other words, generally the judge gets to look at the medical records and decide for himself if there is anything pertinent therein; here, that was not available.

In this case, it would be difficult to convince me that her right to suppress medical records that showed she had significant difficulty in divining and telling the truth should outweigh the right of a defendant to prove that the facts as presented by that person must be tempered with an understanding that the person may be incapable of discerning fact from fiction.

But, as the book makes clear, evidence submitted after the case was even more exculpatory. On the stand, the victim asserted that she was unable after the attack to have any relationship at all with men, was afraid of all males, and avoided them because of the attack. As it turns out, none of this was accurate as several people who know the victim well, or were in a position to witness her subsequent actions, submitted testimony in contradistinction to what she had testified.

As the “Three Days in August” website states:

When several witnesses came forward during a post-trial hearing in May 2010 to reveal startling proof that the accuser had lied several times during the trial, their words were largely ignored by the court – but not by the one-star general with the authority to change Stewart’s life.

In August 2010, the general took five years off of Stewart’s sentence and made him eligible for parole immediately. Nine months later, he was released from prison.

Though released from the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., Stewart is fighting for a new trial so he can clear his name and shed the “sexual offender” label that will stay with him the rest of his life if justice remains out of reach.

I’m not one who thinks that the military justice system is inherently less just than the civilian system; actually, to the contrary, if I was up on charges, I think I would prefer the military side. I’d rather be judged by soldiers (even Officers) than someone in the civilian sector that I don’t actually have anything in common with. In fact, as one of the few people in America who has a list of his favorite attorneys (my college roommate is 1, Neal Puckett of Puckett Faraj that just represented SSG Wutterich is #2) I think that some of the smartest folks I have met are military lawyers, so would hope it would be in the venue. But in this case, it is hard to come to any conclusion other than that where the military justice system and shield laws of a foreign Government come into conflict, that the justice system will be subjugated. This should be rectified.

SFC Stewart now lives in Virginia, where he lives on property owned by his brother. He is separated from his wife and children as his wife is currently assigned to Ft Carson. In fact, as an update from his Dad makes clear on another website set up to support SFC Stewart:

Kelly arrived in Colorado to be with his family on Christmas after a brutal and lengthy flight delayed along the way by weather. His Parole Officer only allowed a 10 day visit, of which 2 will be spent traveling because of her refusal to give him a 20 day visit that would have allowed us to book a flight in an optimum period. As it was, we were forced to have him travel at peak travel times thereby tripling the cost and causing loss of days because there simply were very few available flights. May she have a Merry Christmas.

Anyway, he finally arrived and we talked to him last night. He was cooking a special dinner for the family (he loves cooking) when I called. He and the children are spending today at a local homeless shelter where they are bringing food and the children’s old toys and stuffed animals that they have outgrew.

No one understands that his actions were a bigger mistake than SFC Stewart, but were they so egregious that the military needed to squander both one of its most well-trained assets, but also the public reputation of its justice system? The book makes it clear that the answer there is an emphatic “no.” The case is currently on appeal, and hopefully the US Army Court of Criminal Appeals will take a long hard look at the evidence and decide that German shield laws should not legally trump the right of an accused.

If you wish to help SFC Kelly Stewart, you can go to the website set up in support of him by clicking this link. I’m sure SFC Stewart would appreciate anything you can give, even if it is only an email to him espousing your support in this effort.

This book should be required reading by anyone interested in the military justice system, so I commend to you “Three Days in August: A U.S. Army Special Forces Soldier’s Fight for Military Justice” by Bob McCarty.

Category: Politics