Thursday, April 1, 2010

How Shall We View The Webster Smith Case?

How shall we view the Webster Smith case? In order to properly view it, and to understand it best, we must view it in its proper historical perspective. It must be seen in context. We must view it in terms of American History and the History of the American Judicial System.

Is the decision an accurate measure of white middle class American thought? Is that decision an accurate measure of career military officer and cadet opinions? Is this an accurate gage of the level of "equal protection of laws" Black Americans can expect in any judicial forum in America?

Webster Smith is an African American. He is the latest member of the most recent generation of African Americans who are direct descendants of the original American slaves. Slavery in America was not just a way of life; it was a culture. We ended slavery after the Civil War but we have not yet eradicated the last vestiges of the slave culture. Today it comes in many guises and bears many names; such as, institutionalize racism, bias, discrimination, racial prejudice, white supremacy, Black inferiority, Social Darwinism, reverse discrimination,the Death Penalty, Driving While Black, Disrespect of Cop, plantation justice, affirmative action, preferential treatment, and other coded words. Racism remains a powerful force in America. (L. Friedman,A History of American Law, p. 529)

American justice has never been kind to African Americans. The administration of American justice has never been accommodating to the Black man. Constitutional rights for Blacks are hard to turn into reality in America. Beginning with the slave trade, the Fugitive Slave Laws, the Black Codes after the Civil War, the Restrictive Covenants in real estate contracts, separate but equal, and the ways of Jim Crow, an entire culture was fashioned and designed to keep Blacks in their place. Blacks were kept under strict social control. Slavery was replaced with a caste system. Formal segregation replaced a system of outright exclusion. The message was that Blacks would never be welcomed into white society. (L. Friedman, A History of American Law, p.159,383)

The entire process from the Coast Guard Academy court-martial, to the Coast Guard Court of Criminal Appeals, to the Court of Appeals for the Armed Forces was designed to give Webster Smith at least the appearance of justice and the appearance of fairness. And that is all that he has received so far. There still exists the possibility of a Supreme Court appeal.

The Court of Appeals for the Armed Forces (CAAF) lost prestige with this case. When a case finally came along with profound historical significance, the CAAF was not worthy of the task. It could not rise to the occasion.

A case finally came along that did not involve being late for work or quitting your job and looking for a new job, disobeying an order, or some other minor criminal offense and the CAAF failed to appreciate the difference or the distinction.

In the military if one is absent without leave or authority (AWOL), then he might get sent to jail. In the civilian world it is seen as merely being late for work. Not showing up for work or simply quitting your job in the civilian world is the military equivalent of desertion, and is punished very harshly. These are serious offenses in the military but they do not have profound historical significance. The Webster Smith case had profound historical significance.

The Webster Smith case is a litmus test for American military justice. This was no ordinary trial. It was not insignificant. Our humanity was on trial. Our system of justice was on trial. Every once in a while a case comes along that puts our humanity as a people, 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. I have devoted my life to a pursuit of justice and fairness in America and in the world. As a student of history and as a humanitarian servant, this case, this trial, and the entire appeal's process offends my sense of justice, human dignity and fairness. When I witnessed the Webster Smith trial I saw Justice fall from Heaven as lightning.

This trial defines American justice and military justice in a predominantly white justice system in a country with a long history of slavery, segregation, discrimination, lynching, and disenfranchising Black Americans. In a country where Social Darwinism teaches that Blacks are inferior and sub-human, and whose Constitution originally defined a Black person as only 60 percent or two thirds of a white person, the Webster Smith case was a defining moment for Black-white relations.

No feature of American life has been so marked with blood and failure as the confrontation of Black and white. This is particularly true when there is an element of sex. As Virginia Gov. Robert F. McDonnell (R) said on 7 Apr 2010 concerning slavery when he issued his proclamation declaring April Confederate History Month "slavery has left a stain on the soul of this state and nation. Slavery was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders."

The entire justice system in American has been employed to keep Blacks in their place. When the System was not executing Blacks for fraternizing with whites, it was whipping, branding, or incarcerating them. When a military criminal case came along that involved a Black man and a white woman; a he-said, she-said case; involving sex, lies, and racial bias, the CAAF chose to add another link to the unbroken chain of cases that punish Blacks for being human beings and daring to act as if they were as free as any other American citizen who happens to be white.

The real crime against Webster Smith was that the white girls liked him. That is what he was punished for. The case was designed to send a message to the white girls and the Black men that in American we don't want you fraternizing.

This could be a very sticky wicket at the Coast Guard Academy where one out of every three cadets is a white female. If we are to punish with such Draconian measures any Black male cadet who catches the eye of a white female it would be simpler to suspend minority recruiting. It makes absolutely no sense to recruit Black males, put them in the same barracks with white females, and prohibit them from inter-acting appropriately.

Webster Smith is fortunate in one respect. That is he should be glad that he is alive. If he had been Emmett Till he would be dead. He would not have had a trial or an appeal. That night in 2005 when when was awoken at midnight and snatched out of his bed in Chase Hall in handcuffs, he could very easily have been going to his death at the end of a rope. As it was, he was simply placed in illegal pre-trial confinement and forced to work at hard labor before any charges had been preferred against him.

The CAAF could have taken its historical place on the right side of History with cases like Brown v. Bd of Ed., Griggs v Duke Power, etc
However, it chose to take its place on the left side of History with cases like The Dred Scott Decision, The Court-martial of Jackie Robinson, Plessy v Ferguson, Bakke, etc.


ichbinalj said...

The first cadet ever court-martialed at the Coast Guard Academy in New London has lost another appeal.
Cadet Webster Smith has filed a series of appeals since his conviction in 2006. Now, his only hope is to get his case to the United States Supreme Court.
The most recent appeal lost by Smith in the United States Court of Appeals for the Armed Forces denied the request for a new trial.
Smith was kicked out of the Coast Guard and served five months in a military prison after being convicted of extortion, sodomy and other charged. Smith was acquitted of the most serious charge, rape.
The allegations he was convicted of were made by a fellow Coast Guard cadet, Shelly Roddenbush.
The judge at Smith’s court-martial would not let his lawyers ask her about her past. They said her past sexual relationships could have given her a motive to lie.
Smith appealed and said his constitutional right to confront his accuser had been violated. But, the court of appeals disagreed, saying "further cross-examination of Shelly was not 'constitutionally required.'"
Smith received the same response in 2008 from the United States Coast Guard Court of Appeals.
Both courts said the judge allowed enough background to give jurors an idea of Shelly’s past.
The latest opinion said more detail was "neither material nor vital to Smith's defense."
Smith is now married and has a child.

ichbinalj said...

ON JULY 6, 1944, Jackie Robinson boarded an Army bus at Fort Hood, Texas. He was one of thousands of Blacks thrust into the Jim Crow South during World War II. The driver demanded that Robinson get to the back of the bus "where the colored people belong.” Robinson refused, and so began a series of events that led to his arrest and court-martial
The court-martial of 2d Lt. Jackie Robinson took place on August 2, 1944.
During World War II, according to the historian Jack D. Foner, “many Black soldiers were unjustly convicted by courts-martial, either because their officers assumed their guilt regardless of the evidence or because they wanted to ‘set an example’ for other Black soldiers.”

ichbinalj said...

Virginia Gov. Robert F. McDonnell (R) apologized on Wednesday 7 Apr 2010 for failing to include slavery in his proclamation declaring April as Confederate History Month. In his statement, McDonnell said slavery "has left a stain on the soul of this state and nation."

ichbinalj said...

(A History of American Law, L. M. Friedman, 3rd Ed., 2005, Simon & Schuster)
An amazing piece of work that is not just a history of the American legal system, but a history of America as seen through its laws. It manages to cover everything from the development of equity law to the explosion of torts to the history of commerce and contracts, all without being pedantic or overly general.

Friedman relies on odd laws, great cases, and telling quotes to explain his story. In discussing the battle between civil and common law in California, he quotes an early California legislature which waxed poetic on the wonders of the caveat emptor rule (it apparently caused commerce to "whiten every sea, woo every breeze"). He discusses an early law in Virginia that classified slaves as real estate instead of chattel, highlighting their novel nature in English legal history. He discusses the 1878 case of Hall v. DeCuir, where the Supreme Court overturned a Louisiana state law forbidding racial discrimination on common carriers as an unconstitutional burden on interstate commerce, showing how the Court not only blocked federal anti-discrimination laws, it blocked any state attempts to staunch racial animosity, the Fourteenth Amendment notwithstanding.

Friedman also wades into such complicated debates as the one surrounding the "Field Code," first passed in New York in 1848, which began the "codification" of American law yet could only get as far as clarifying civil procedure. Codes on penal and public law would sometimes have to wait a century for passage, at least outside the so-called Wild West (which he shows was overrun by more lawyers per capita than even the developed East. In this story, the West was filled with litigators, not cowboys.)

I thought that this book might simply recapitulate some of Friedman's work in "Crime and Punishment in American History," but the sections on criminal law are brief, and usually deal with oddities and legal development. Overall, the books compliment each other nicely. Also, despite its broad title, the book focuses overwhelmingly on the nineteenth century (the colonial period is too sketchy and the 20th century is big enough that he deals with it in-depth in another book). Still, this is a great work that gave me a new appreciation for the world of the law