Thursday, June 24, 2010
Sunday, April 18, 2010
Justice Souter Retiring So He Can Read.
Robert Bork once said serving on the Supreme Court would be “an
intellectual feast.”
By contrast, Justice David Souter
said he undergoes a “sort of annual intellectual lobotomy” when the
Supreme Court term begins in October, a condition that he said lasts
until the end of the term the following summer.
It was an offhand remark by Souter, made in service of a larger point
before an audience of the American Academy of Arts & Sciences in D.C.:
that Americans need to develop a “habit of mind” that includes reading
books – which, he implied, becomes very hard for him to do during the
bustle of a Supreme Court term. “I cram what I can into the
summertime,” Souter said.
Without making too much of it, Souter’s comment opened an interesting
window into his thinking about his job – and why conventional wisdom
has it that he is considering leaving the Court soon to repair to his
New Hampshire home. If he thinks of his work on the Court, even
sarcastically, as a nine-month-long, brain-evacuating experience, it
is easier to see why he would want to leave it behind – if nothing
else, to catch up on his reading.
It was a rare public outing for the reclusive justice, but he was at
ease, and among friends; he has been a fellow of the academy since
1997.(View the discussion at this C-SPAN site.) Souter spoke on a
panel discussing the role of humanities in civic life, with a special
focus on how to make the case for humanities education and for the
importance of humanities in general in the current economic and
political climate. Souter was joined by Patty Stonesifer, chair of the
Smithsonian Institution’s Board of Regents, Don Randel, president of
the Andrew W. Mellon Foundation, and Edward Ayers, president of the
University of Richmond, with Leslie Berlowitz, CEO of the American
Academy moderating.
Souter made a strong pitch for the necessity of learning history, in
part as “an antidote to cynicism about the past.” As an example, he
discussed how differently the justices who decided Plessy v. Ferguson
(in favor of racially separate facilities) viewed segregation from
those who decided Brown v. Board of Education against separate but
equal schools. Only by learning the historical context of both
decisions, Souter said, can the Plessy decision be understood.
During a question-and-answer period, Souter was expansive with advice,
though he cautioned against following it. As he was about to suggest
ways to advocate for humanities before Congress, Souter noted that he
has long been on the “judicial salary committee” urging raises for
judges, without any success. “Whatever I tell you, do the opposite.”
Souter said that during a conference on judicial independence at
Georgetown University Law Center led by Justices Sandra Day O’Connor
and Stephen Breyer two years ago, he learned that the problem was not
just that the public is ignorant about how the judiciary works. “The
problem is one of pervasive ignorance about government.” Taking a
civics class when he was a child, Souter said, was “dull as ditch
water,” but absolutely necessary – and only 50 percent of students
today take civics. Souter’s point appeared to be that “holding the
humanities tin cup” was not a narrow plea but a campaign to improve
all branches of education.
That led Souter to his discussion of the need for a “habit of mind”
that includes reading, intellectual curiosity, and self-doubt. He
ended by noting that the legendary jurist Learned Hand, quoting Oliver
Cromwell, the 17th century British leader, once said these words
should appear above the entrance of all schools, courthouses, and
public buildings: “Consider That Ye May Be Wrong.”
intellectual feast.”
By contrast, Justice David Souter
said he undergoes a “sort of annual intellectual lobotomy” when the
Supreme Court term begins in October, a condition that he said lasts
until the end of the term the following summer.
It was an offhand remark by Souter, made in service of a larger point
before an audience of the American Academy of Arts & Sciences in D.C.:
that Americans need to develop a “habit of mind” that includes reading
books – which, he implied, becomes very hard for him to do during the
bustle of a Supreme Court term. “I cram what I can into the
summertime,” Souter said.
Without making too much of it, Souter’s comment opened an interesting
window into his thinking about his job – and why conventional wisdom
has it that he is considering leaving the Court soon to repair to his
New Hampshire home. If he thinks of his work on the Court, even
sarcastically, as a nine-month-long, brain-evacuating experience, it
is easier to see why he would want to leave it behind – if nothing
else, to catch up on his reading.
It was a rare public outing for the reclusive justice, but he was at
ease, and among friends; he has been a fellow of the academy since
1997.(View the discussion at this C-SPAN site.) Souter spoke on a
panel discussing the role of humanities in civic life, with a special
focus on how to make the case for humanities education and for the
importance of humanities in general in the current economic and
political climate. Souter was joined by Patty Stonesifer, chair of the
Smithsonian Institution’s Board of Regents, Don Randel, president of
the Andrew W. Mellon Foundation, and Edward Ayers, president of the
University of Richmond, with Leslie Berlowitz, CEO of the American
Academy moderating.
Souter made a strong pitch for the necessity of learning history, in
part as “an antidote to cynicism about the past.” As an example, he
discussed how differently the justices who decided Plessy v. Ferguson
(in favor of racially separate facilities) viewed segregation from
those who decided Brown v. Board of Education against separate but
equal schools. Only by learning the historical context of both
decisions, Souter said, can the Plessy decision be understood.
During a question-and-answer period, Souter was expansive with advice,
though he cautioned against following it. As he was about to suggest
ways to advocate for humanities before Congress, Souter noted that he
has long been on the “judicial salary committee” urging raises for
judges, without any success. “Whatever I tell you, do the opposite.”
Souter said that during a conference on judicial independence at
Georgetown University Law Center led by Justices Sandra Day O’Connor
and Stephen Breyer two years ago, he learned that the problem was not
just that the public is ignorant about how the judiciary works. “The
problem is one of pervasive ignorance about government.” Taking a
civics class when he was a child, Souter said, was “dull as ditch
water,” but absolutely necessary – and only 50 percent of students
today take civics. Souter’s point appeared to be that “holding the
humanities tin cup” was not a narrow plea but a campaign to improve
all branches of education.
That led Souter to his discussion of the need for a “habit of mind”
that includes reading, intellectual curiosity, and self-doubt. He
ended by noting that the legendary jurist Learned Hand, quoting Oliver
Cromwell, the 17th century British leader, once said these words
should appear above the entrance of all schools, courthouses, and
public buildings: “Consider That Ye May Be Wrong.”
Supreme Court Justice Souter Loves To Read.
Supreme Court Justice David Souter is planning to retire at the end of
the current court term.
The vacancy will give President Obama his first chance to name a
member of the high court and begin to shape its future direction.
At 69, Souter is nowhere near the oldest member of the court. In fact,
he is in the younger half of the court's age range, with five justices
older and just three younger. So far as anyone knows, he is in good
health. But he has made clear to friends for some time that he wanted
to leave Washington, a city he has never liked, and return to his
native New Hampshire. Now, according to reliable sources, he has
decided to take the plunge and has informed the White House of his
decision.
Factors in his decision no doubt include the election of President
Obama, who would be more likely to appoint a successor attuned to the
principles Souter has followed as a moderate-to-liberal member of the
court's more liberal bloc over the past two decades.
In addition, Souter was apparently satisfied that neither the court's
oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth
Bader Ginsburg, who had cancer surgery over the winter, wanted to
retire at the end of this term. Not wanting to cause a second vacancy,
Souter apparently had waited to learn his colleagues' plans before
deciding his own.
Given his first appointment to the high court, most observers expect
Obama will appoint a woman, since the court currently has only one
female justice and Obama was elected with strong support from women.
But an Obama pick would be unlikely to change the ideological makeup
of the court.
Souter was a Republican appointed by President George H.W. Bush in
1990, largely on the recommendation of New Hampshire's former Gov.
John Sununu, who had become the first President Bush's chief of staff.
But Souter surprised Bush and other Republicans by joining the court's
more liberal wing.
He generally votes with Stevens and the two justices who were
appointed by President Bill Clinton — making up the bloc of four more
liberal members of the court, a group that has usually been in the
minority throughout Souter's tenure.
Possible nominees who have been mentioned as being on a theoretical
short list include Elena Kagan, the current solicitor general who
represents the government before the Supreme Court; Sonia Sotomayor, a
Hispanic judge on the U.S. Court of Appeals for the Second Circuit;
and Diane Wood, a federal judge in Chicago who taught at the
University of Chicago at the same time future President Barack Obama
was teaching constitutional law there.
President Obama's choice has an excellent chance of being confirmed by
the U.S. Senate, where Democrats now have an advantage of 59 seats to
the Republicans' 40.
By the time a vote on a successor is taken, the Senate is anticipated
to have a 60th Democrat, as the Minnesota Supreme Court is expected to
approve the recount that elected Democrat Al Franken over incumbent
Republican Norm Coleman in that state.
Souter was a graduate of both Harvard College and Harvard Law School.
He also attended Magdalen College at Oxford University in England. But
his academic pedigree was only one reason he had been regarded as a
thinking man's jurist and a highly thoughtful conservative prior to
his elevation to the nation's highest bench.
Once appointed and confirmed, he soon became a "surprise justice." He
bucked the expectation that he would join the court's conservative
wing — then led by Chief Justice William Rehnquist, who was appointed
to the court by President Nixon and elevated to chief by President
Reagan, and featuring Reagan appointees Antonin Scalia and Anthony
Kennedy.
The appointing president had been assured of Souter's credentials by
the White House chief of staff, John Sununu, who had known Souter as a
conservative member of the New Hampshire Supreme Court when Sununu was
that state's Republican governor.
But when confronted by the ideological debates and partisan landscape
of Washington, Souter surprised both Sununu and Bush by aligning
himself with the court's more moderate wing, which also included
Reagan appointee Sandra Day O'Connor.
Later on, Souter became a full-fledged member of the court's
unabashedly liberal caucus, featuring yet another Republican, John
Paul Stevens (appointed by President Ford in 1975), who remains a
member of the court to this day.
Souter was unconventional in other ways beyond his ideological
independence. He moved to Washington to attend court sessions, but he
returned to his beloved roots in New Hampshire whenever possible,
including for the court's long summer hiatus each year.
Rather than fly home, Souter preferred to drive. He also resisted
other forms of contemporary technology and convenience, holding out
against the cell phone and e-mail and continuing to write his opinions
and dissents in longhand, using a fountain pen.
Once engaged but never married, Souter was once listed among the
capital's 10 "most eligible bachelors" but remained in that category
of "confirmed bachelors."
He was never a creature of the capital city's social scene, living in
a spartan apartment in the city not far from the Supreme Court offices
on Capitol Hill. Although he served nearly two decades on the high
court, he made no secret of his preference for the lifestyle and pace
of his native rural New Hampshire.
Wednesday, April 14, 2010
Suits & Sentences.
"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.
Read more: http://blogs.mcclatchydc.com/law/2010/04/coast-guard-academy-sexs-lands-cadet-in-jail.html#ixzz0l4nMi25x
Coast Guard Academy sexs lands one cadet in jail, another skates.
SR was a cadet at the U.S. Coast Guard Academy. She had sex with an enlisted man during the summer of 2005, which is contrary to military regulations. Then she lied about it.
But she's not the one in with a crushed life.
Instead, as spelled out in a new opinion by the U.S. Court of Appeals for the Armed Forces, SR was the sole witness testifying against former Cadet Webster M. Smith. Her testimony got Smith convicted in 2006 on three sexual misconduct charges. Smith was sentenced to six months incarceration and dismissal from the service.
While stationed at the Little Creek base in Norfolk, Smith began hearing rumors that SR had had an "indiscretion." SR first told him she had non-consensual sex with an enlisted man; later, when the rumors persisted, SR acknowledged the sex was both consensual and more extensive than she first indicated. Smith responded that:
"He would continue to try to suppress the rumors, but that he needed motivation to do so. (Smith) denied he was seeking sexual favors but suggested the couple take a photograph of themselves naked together to build 'trust in one another.' After the photo, (Smith) left but returned to her room later that evening."
Then, he performed cunnilingus on her and she performed fellatio on him. The opinion is more explicit than that.
Here was the question: should Smith have been permitted to raise the specifics of SR's "indiscretion," as evidence that she had a habit of lying about sexual encounters?
The appellate court in its divided March 29 opinion thought not, reasoning that "while Cadet SR’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to (Smith's) extant theory of fabrication."
Two dissenters countered that the inability to specify SR's sexual past hurt Smith's defense, stating that "with this limited information about SR’s secret, the members were left to speculate whether the secret was a minor disciplinary infraction or a more serious charge, but they had no idea that the proffered evidence directly implicated SR’s motive and credibility."
Smith was the first cadet to be court martialed in the Coast Guard Academy's history.
Posted by Mike Doyle at 10:29 AM | Permalink
Technorati Tags: Coast Guard Academy, U.S. Court of appeals for the armed forces.
Wednesday, April 7, 2010
Week After Webster Smith Debacle, CAAF Delivers Unanimous Decision.
One week after the decision in the Webster Smith Case, the Court of Appeal for the Armed Forces (CAAF) proved that they were capable of reaching a unanimous, 5-0, decision in a criminal case where the charges involve sexual misconduct with a white female. However, the accused was not Black. This was a reversal; the guilty verdict was set aside; and the charge and specification were dismissed.
UNITED STATES, Appellee
v.
James W. SUTTON, Technical Sergeant
U.S. Air Force, Appellant
No. 09-0458
Crim. App. No. 37155
United States Court of Appeals for the Armed Forces
Argued January 12, 2010
Decided April 6, 2010
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Daniel Conway, Esq.
For Appellee: Captain Joseph J. Kubler
Military Judge: Timothy D. Wilson
This opinion is subject to revision before final publication.
United States v. Sutton, No. 09-0458/AF
2
Judge ERDMANN delivered the opinion of the court.
Technical Sergeant James W. Sutton was convicted at a
contested general court-martial of one specification of
soliciting his step-daughter to engage in indecent liberties, in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. He was sentenced to a reduction to E-
4, three months of hard labor without confinement, and a badconduct
discharge. The convening authority approved the
sentence and the United States Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Sutton, No. ACM 37155, 2009 CCA LEXIS 39, 2009 WL 289806 (A.F.
Ct. Crim. App., Jan. 29, 2009) (unpublished).
“A specification states an offense if it alleges, either
expressly or by implication, every element of the offense, so as
to give the accused notice and protection against double
jeopardy.” United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006) (citations omitted). We granted review to determine
whether a specification which alleges that the appellant
solicited his step-daughter to commit the offense of indecent
liberties with a child by asking her to lift her shirt to show
him her breasts states an offense.1 We hold that the
1 We granted review of the following issues:
I. Whether the military judge erred in denying the
defense motion to suppress Appellant’s oral and
written statements based on a violation of Article 31,
UCMJ.
United States v. Sutton, No. 09-0458/AF
3
specification as drafted in this case fails to state an offense
and therefore dismiss the charge and its specification. 2
BACKGROUND
In December 2005 Sutton was wrestling on his bed with his
two step-daughters, P.S. and H.S., while his wife, the
children’s mother, was not at home. After asking H.S. to leave
the room, Sutton asked P.S., then ten years of age, to lift her
shirt. P.S. shook her head, indicating she would not, and hid
her face in her stuffed animal. P.S. did not immediately report
the incident. Several days later while the family was shopping
at Wal-Mart, P.S. became upset and, for the first time, informed
her mother that Sutton had asked her to lift her shirt and also
said that he had offered her $20.00.3 Mrs. Sutton confronted
Sutton about the incident and testified that he admitted asking
P.S. to show him her chest and offered her money to do so.
Mrs. Sutton later reported her daughter’s statements to an
on-base chaplain. The chaplain contacted the Air Force Office
of Special Investigations (OSI), which initiated an
II. Whether the facts charged in the specification are
sufficient as a matter of law to support a charge for
solicitation of indecent liberties with a child under
Article 134, UCMJ, where the person solicited was that
child.
United States v. Sutton, 68 M.J. 201 (C.A.A.F. 2009) (order
granting review). 2 Since our decision on Issue II is dispositive of the case, we
do not address Issue I.
United States v. Sutton, No. 09-0458/AF
4
investigation the same day. OSI contacted the Tom Green County
(Texas) District Attorney’s Office for assistance in the
investigation. Upon completion of the civilian investigation,
Sutton was indicted in Texas state court on one count of
indecency with a child by exposing his genitals to P.S., and one
count of criminal solicitation of a minor by asking P.S. to
expose her breasts. The criminal solicitation count was
withdrawn by the state on legal grounds after the defense filed
a motion to quash that count,4 and the state proceeded to trial
on the single indecency count. During the trial on the
indecency count P.S. recanted her earlier statements that Sutton
had exposed his genitals to her and he was subsequently
acquitted of that charge.
Sutton was then charged by military authorities under
Article 134, UCMJ, as follows:5
TECHNICAL SERGEANT JAMES W. SUTTON . . . did, at or
near the State of Texas, between on or about 1
December 2005 and on or about 1 February 2006,
wrongfully solicit his dependant step-daughter, [PS],
a female under 16 years of age, not the wife of the
accused, to engage in indecent liberties by asking her
to lift her shirt and show him her breasts for $20.00,
3 At the court-martial, P.S. testified that Sutton asked her to
lift her shirt, but denied that he offered her money. 4 Count 2 of the indictment alleged that Sutton solicited P.S. to
expose her breasts. Tex. Penal Code Ann. § 21.11 (indecency
with a child) requires exposure of a child’s anus or genitals
but does not include exposure of the breast. 5 Sutton was also charged under Article 134, UCMJ, with
possessing visual depictions of minors engaging in sexually
explicit conduct. That specification was dismissed and is not
at issue in this appeal.
United States v. Sutton, No. 09-0458/AF
5
or words to that effect, with intent to gratify the
lust of the accused.
Sutton’s defense counsel filed a motion to dismiss the
specification for failure to state an offense. The defense,
relying at least in part on the prior Texas court ruling in
Sutton’s case, argued that asking a child to expose her breasts
was not a crime. The Government responded that based on MCM pt.
IV, para. 87.c(2) (2005 ed.), the offense was properly charged
as indecent liberties with a child as it alleged that Sutton
wrongfully solicited his step-daughter to engage in indecent
liberties, and the conduct brought discredit to the Air Force
and was prejudicial to good order and discipline. The military
judge found that the specification did allege an act and that
act, under the circumstances, was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.
The issue of the sufficiency of the specification arose
once again when the military judge was preparing his
instructions for the panel. The military judge stated that the
wording of the specification raised confusion as to the proper
elements of the offense and questioned whether it was a
mistitled solicitation offense. The military judge specifically
asked trial counsel if the Government intended the charge to be
United States v. Sutton, No. 09-0458/AF
6
indecent liberties under Article 134, UCMJ,6 or solicitation to
commit indecent liberties under either Article 82, UCMJ, 10
U.S.C. § 882, or Article 134, UCMJ. Trial counsel responded
that they had used the word “solicit” in the specification as a
term of art and that they viewed the charge as an indecent
liberties charge under Article 134, UCMJ. Sutton’s defense
counsel strongly disagreed with the Government’s
characterization of the specification. The defense attorneys
argued that the defense had always viewed the charge as a
solicitation to commit indecent liberties and had prepared their
defense on that basis.
The military judge, acknowledging the confusion in the
wording of the specification, stated that Sutton “wasn’t asking
her [P.S.] or soliciting her to commit an offense. If an
offense was committed, it was committed by him, not by her. So
he wasn’t soliciting her to commit an offense.” Ultimately the
military judge decided not to give the solicitation instruction:
because the way I view solicitation as this
instruction is intended, is it’s intended to show the
jury that the accused solicited another person to
commit a crime. That’s not what we have here in the
charge. We don’t have that charged in this case. He
did not solicit, arguably, his stepdaughter, [P.S.] to
commit a crime. He attempted to have indecent
liberties with a child, allegedly, by soliciting her
to do certain things. But, those certain things were
6 As this offense occurred prior to October 1, 2007, the Article
134, UCMJ, offense of “indecent liberties with a child” was
still in force. See MCM, Analysis of Punitive Articles
Applicable to Sexual Assault Offenses Committed Prior to 1
October 2007 app. 27 at A27-3 (2008 ed.).
United States v. Sutton, No. 09-0458/AF
7
not to commit a crime. So consequently, I’m not
giving the solicitation instruction.
After a recess the military judge convened an Article
39(a), UCMJ, 10 U.S.C. § 839(a), session and announced that he
had been informed during the break by trial counsel that it was
the convening authority’s intention to refer the case as an
Article 134, UCMJ, solicitation offense. In view of the
Government’s change of position, and the defense objection to a
proposed instruction on indecent liberties, the military judge
stated that he had changed his mind and would instruct the panel
on “solicitation” under Article 134, UCMJ. The instructions
given to the members set forth the elements and definitions for
solicitation to commit the offense of indecent liberties as the
offense alleged, and the elements and definitions for the
offense of indecent liberties, as the offense Sutton solicited
P.S. to commit.
DISCUSSION
We turn first to Issue II, which is whether the
specification states an offense. As noted, the standard for
determining whether a specification states an offense is whether
the specification alleges “every element” of the offense either
expressly or by implication, so as give the accused notice and
protect him against double jeopardy. Crafter, 64 M.J. at 211;
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); Rule for
Courts-Martial 307(c)(3). “The question of whether a
United States v. Sutton, No. 09-0458/AF
8
specification states an offense is a question of law, which this
Court reviews de novo.” Crafter, 64 M.J. at 211 (citations
omitted). Sutton argues that a solicitation charge requires
that the person solicited be asked to participate in a crime
punishable under the UCMJ and P.S. was not asked to commit a
crime. He notes that under the charged specification, the
victim must necessarily be an accomplice in the crime against
her, a concept that is very confusing. Sutton also notes the
military judge’s statements at trial that “if [the Government]
intended [the charge] to be a solicitation charge, then they
would have a real problem. . . . If an offense was committed, it
was committed by him, not by her. . . . he wasn’t soliciting her
to commit an offense.”
The Government responds that they need only show that P.S.
knew that the solicitation was an invitation to join in a
criminal venture. The Government argues that it does not matter
if P.S. was solicited to commit a crime where she was the
potential victim, and the fact that Sutton asked P.S. to
victimize herself should not decriminalize the solicitation.
Relying on two courts of criminal appeals decisions, the
Government argues that when a child is asked to expose herself
for an adult’s lustful purpose, and that child knows what is
being asked is wrongful, then that child has been solicited to
commit indecent liberties with a child. United States v.
Conway, 40 M.J. 859, 862 (A.F.C.M.R. 1994); United States v.
United States v. Sutton, No. 09-0458/AF
9
Harris, No. NMCCA 9901587, 2003 CCA LEXIS 269, *3 (N-M. Ct.
Crim. App. Nov. 26, 2003) (unpublished).7 We disagree.
In both Conway and Harris, each appellant asked his stepdaughter
to allow him to see her naked. Both were charged with
soliciting their step-daughters to commit indecent liberties
with a child. In affirming the convictions, both decisions
focused on whether the victims knew the request was wrongful
(finding that they did) and whether the solicited conduct
constituted part of a criminal venture. Neither decision,
however, specifically addressed whether it was legally possible
for the victims to commit the offense.
As noted, the specification in question reads as follows:
Specification 1: TECHNICAL SERGEANT JAMES W. SUTTON
. . . [d]id, at or near the State of Texas, between on
or about 1 December 2005 and on or about 1 February
2006, wrongfully solicit his dependant step-daughter,
[PS], a female under 16 years of age, not the wife of
the accused, to engage in indecent liberties by asking
her to lift her shirt and show him her breasts for
$20.00, or words to that effect, with intent to
gratify the lust of the accused.
The elements of “soliciting another to commit an
offense” under Article 134, UCMJ, are:
(1) That the accused solicited or advised a certain
person or persons to commit a certain offense
under the code other than one of the four
offenses named in Article 82;
7 Both Conway and Harris relied on United States v. Oakley, 7
C.M.A. 733, 23 C.M.R. 197 (C.M.A. 1957), and United States v.
Higgins, 40 M.J. 67 (C.M.A. 1994), however, neither of those
cases dealt with situations in which the individuals solicited
to commit the offense in question were also the victim of that
offense.
United States v. Sutton, No. 09-0458/AF
10
(2) That the accused did so with the intent that the
offense actually be committed; and
(3) That under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature
to bring discredit upon the armed forces.
MCM pt. IV, para. 105.b (2005 ed.). The first element of
solicitation under Article 134, UCMJ, requires the accused to
solicit another person to commit an offense. Here the
Government alleges that Sutton solicited P.S. to commit the
offense of indecent liberties with a child. The elements of the
Article 134, UCMJ, offense of indecent acts or liberties with a
child are as follows:
(2) No physical contact.
(a) That the accused committed a certain act;
(b) That the act amounted to the taking of
indecent liberties with a certain person;
(c) That the accused committed the act in the
presence of this person;
(d) That this person was under 16 years of age
and not the spouse of the accused;
(e) That the accused committed the act with
the intent to arouse, appeal to, or
gratify the lust, passions, or sexual
desires of the accused, the victim, or
both; and
(f) That, under the circumstances, the conduct
of the accused was to the prejudice of
good order and discipline in the armed
forces or was of a nature to bring
discredit upon the armed forces.
MCM pt. IV, para. 87.b(2) (2005 ed.). The elements of indecent
liberties with a child clearly contemplates two actors, as the
Manual refers to “the accused” and refers to the victim as a
United States v. Sutton, No. 09-0458/AF
11
“certain person” or “this person.” See MCM pt. IV, para.
87.b(2)(b)-(e). In contrast, the specification under which
Sutton was charged presumes P.S. could have committed the act of
indecent liberties with a child on herself.
While the evidence established that Sutton did ask P.S. to
lift her shirt, the act of P.S. lifting her shirt, in this
context, could not constitute the criminal offense of indecent
liberties with a child by P.S.8 Under the factual circumstances
presented here, a charge of indecent liberties with a child
could have alleged that Sutton asked P.S to lift her shirt to
show him her breasts in order to gratify his lust. That,
however, was not the charge and instead the Government chose to
charge Sutton with soliciting P.S. to commit the offense of
indecent liberties with a child. Because P.S. cannot commit the
offense of indecent liberties with a child on herself, the
specification fails to state an offense.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The finding of guilty to the
charge and its specification and the sentence are set aside.
The charge and specification are dismissed.
8 Even if we were to assume that P.S. could be considered an
aider or abettor under Article 77, UCMJ, the charge would still
fail as she did not share in any criminal purpose.
UNITED STATES, Appellee
v.
James W. SUTTON, Technical Sergeant
U.S. Air Force, Appellant
No. 09-0458
Crim. App. No. 37155
United States Court of Appeals for the Armed Forces
Argued January 12, 2010
Decided April 6, 2010
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Daniel Conway, Esq.
For Appellee: Captain Joseph J. Kubler
Military Judge: Timothy D. Wilson
This opinion is subject to revision before final publication.
United States v. Sutton, No. 09-0458/AF
2
Judge ERDMANN delivered the opinion of the court.
Technical Sergeant James W. Sutton was convicted at a
contested general court-martial of one specification of
soliciting his step-daughter to engage in indecent liberties, in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. He was sentenced to a reduction to E-
4, three months of hard labor without confinement, and a badconduct
discharge. The convening authority approved the
sentence and the United States Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Sutton, No. ACM 37155, 2009 CCA LEXIS 39, 2009 WL 289806 (A.F.
Ct. Crim. App., Jan. 29, 2009) (unpublished).
“A specification states an offense if it alleges, either
expressly or by implication, every element of the offense, so as
to give the accused notice and protection against double
jeopardy.” United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006) (citations omitted). We granted review to determine
whether a specification which alleges that the appellant
solicited his step-daughter to commit the offense of indecent
liberties with a child by asking her to lift her shirt to show
him her breasts states an offense.1 We hold that the
1 We granted review of the following issues:
I. Whether the military judge erred in denying the
defense motion to suppress Appellant’s oral and
written statements based on a violation of Article 31,
UCMJ.
United States v. Sutton, No. 09-0458/AF
3
specification as drafted in this case fails to state an offense
and therefore dismiss the charge and its specification. 2
BACKGROUND
In December 2005 Sutton was wrestling on his bed with his
two step-daughters, P.S. and H.S., while his wife, the
children’s mother, was not at home. After asking H.S. to leave
the room, Sutton asked P.S., then ten years of age, to lift her
shirt. P.S. shook her head, indicating she would not, and hid
her face in her stuffed animal. P.S. did not immediately report
the incident. Several days later while the family was shopping
at Wal-Mart, P.S. became upset and, for the first time, informed
her mother that Sutton had asked her to lift her shirt and also
said that he had offered her $20.00.3 Mrs. Sutton confronted
Sutton about the incident and testified that he admitted asking
P.S. to show him her chest and offered her money to do so.
Mrs. Sutton later reported her daughter’s statements to an
on-base chaplain. The chaplain contacted the Air Force Office
of Special Investigations (OSI), which initiated an
II. Whether the facts charged in the specification are
sufficient as a matter of law to support a charge for
solicitation of indecent liberties with a child under
Article 134, UCMJ, where the person solicited was that
child.
United States v. Sutton, 68 M.J. 201 (C.A.A.F. 2009) (order
granting review). 2 Since our decision on Issue II is dispositive of the case, we
do not address Issue I.
United States v. Sutton, No. 09-0458/AF
4
investigation the same day. OSI contacted the Tom Green County
(Texas) District Attorney’s Office for assistance in the
investigation. Upon completion of the civilian investigation,
Sutton was indicted in Texas state court on one count of
indecency with a child by exposing his genitals to P.S., and one
count of criminal solicitation of a minor by asking P.S. to
expose her breasts. The criminal solicitation count was
withdrawn by the state on legal grounds after the defense filed
a motion to quash that count,4 and the state proceeded to trial
on the single indecency count. During the trial on the
indecency count P.S. recanted her earlier statements that Sutton
had exposed his genitals to her and he was subsequently
acquitted of that charge.
Sutton was then charged by military authorities under
Article 134, UCMJ, as follows:5
TECHNICAL SERGEANT JAMES W. SUTTON . . . did, at or
near the State of Texas, between on or about 1
December 2005 and on or about 1 February 2006,
wrongfully solicit his dependant step-daughter, [PS],
a female under 16 years of age, not the wife of the
accused, to engage in indecent liberties by asking her
to lift her shirt and show him her breasts for $20.00,
3 At the court-martial, P.S. testified that Sutton asked her to
lift her shirt, but denied that he offered her money. 4 Count 2 of the indictment alleged that Sutton solicited P.S. to
expose her breasts. Tex. Penal Code Ann. § 21.11 (indecency
with a child) requires exposure of a child’s anus or genitals
but does not include exposure of the breast. 5 Sutton was also charged under Article 134, UCMJ, with
possessing visual depictions of minors engaging in sexually
explicit conduct. That specification was dismissed and is not
at issue in this appeal.
United States v. Sutton, No. 09-0458/AF
5
or words to that effect, with intent to gratify the
lust of the accused.
Sutton’s defense counsel filed a motion to dismiss the
specification for failure to state an offense. The defense,
relying at least in part on the prior Texas court ruling in
Sutton’s case, argued that asking a child to expose her breasts
was not a crime. The Government responded that based on MCM pt.
IV, para. 87.c(2) (2005 ed.), the offense was properly charged
as indecent liberties with a child as it alleged that Sutton
wrongfully solicited his step-daughter to engage in indecent
liberties, and the conduct brought discredit to the Air Force
and was prejudicial to good order and discipline. The military
judge found that the specification did allege an act and that
act, under the circumstances, was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.
The issue of the sufficiency of the specification arose
once again when the military judge was preparing his
instructions for the panel. The military judge stated that the
wording of the specification raised confusion as to the proper
elements of the offense and questioned whether it was a
mistitled solicitation offense. The military judge specifically
asked trial counsel if the Government intended the charge to be
United States v. Sutton, No. 09-0458/AF
6
indecent liberties under Article 134, UCMJ,6 or solicitation to
commit indecent liberties under either Article 82, UCMJ, 10
U.S.C. § 882, or Article 134, UCMJ. Trial counsel responded
that they had used the word “solicit” in the specification as a
term of art and that they viewed the charge as an indecent
liberties charge under Article 134, UCMJ. Sutton’s defense
counsel strongly disagreed with the Government’s
characterization of the specification. The defense attorneys
argued that the defense had always viewed the charge as a
solicitation to commit indecent liberties and had prepared their
defense on that basis.
The military judge, acknowledging the confusion in the
wording of the specification, stated that Sutton “wasn’t asking
her [P.S.] or soliciting her to commit an offense. If an
offense was committed, it was committed by him, not by her. So
he wasn’t soliciting her to commit an offense.” Ultimately the
military judge decided not to give the solicitation instruction:
because the way I view solicitation as this
instruction is intended, is it’s intended to show the
jury that the accused solicited another person to
commit a crime. That’s not what we have here in the
charge. We don’t have that charged in this case. He
did not solicit, arguably, his stepdaughter, [P.S.] to
commit a crime. He attempted to have indecent
liberties with a child, allegedly, by soliciting her
to do certain things. But, those certain things were
6 As this offense occurred prior to October 1, 2007, the Article
134, UCMJ, offense of “indecent liberties with a child” was
still in force. See MCM, Analysis of Punitive Articles
Applicable to Sexual Assault Offenses Committed Prior to 1
October 2007 app. 27 at A27-3 (2008 ed.).
United States v. Sutton, No. 09-0458/AF
7
not to commit a crime. So consequently, I’m not
giving the solicitation instruction.
After a recess the military judge convened an Article
39(a), UCMJ, 10 U.S.C. § 839(a), session and announced that he
had been informed during the break by trial counsel that it was
the convening authority’s intention to refer the case as an
Article 134, UCMJ, solicitation offense. In view of the
Government’s change of position, and the defense objection to a
proposed instruction on indecent liberties, the military judge
stated that he had changed his mind and would instruct the panel
on “solicitation” under Article 134, UCMJ. The instructions
given to the members set forth the elements and definitions for
solicitation to commit the offense of indecent liberties as the
offense alleged, and the elements and definitions for the
offense of indecent liberties, as the offense Sutton solicited
P.S. to commit.
DISCUSSION
We turn first to Issue II, which is whether the
specification states an offense. As noted, the standard for
determining whether a specification states an offense is whether
the specification alleges “every element” of the offense either
expressly or by implication, so as give the accused notice and
protect him against double jeopardy. Crafter, 64 M.J. at 211;
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); Rule for
Courts-Martial 307(c)(3). “The question of whether a
United States v. Sutton, No. 09-0458/AF
8
specification states an offense is a question of law, which this
Court reviews de novo.” Crafter, 64 M.J. at 211 (citations
omitted). Sutton argues that a solicitation charge requires
that the person solicited be asked to participate in a crime
punishable under the UCMJ and P.S. was not asked to commit a
crime. He notes that under the charged specification, the
victim must necessarily be an accomplice in the crime against
her, a concept that is very confusing. Sutton also notes the
military judge’s statements at trial that “if [the Government]
intended [the charge] to be a solicitation charge, then they
would have a real problem. . . . If an offense was committed, it
was committed by him, not by her. . . . he wasn’t soliciting her
to commit an offense.”
The Government responds that they need only show that P.S.
knew that the solicitation was an invitation to join in a
criminal venture. The Government argues that it does not matter
if P.S. was solicited to commit a crime where she was the
potential victim, and the fact that Sutton asked P.S. to
victimize herself should not decriminalize the solicitation.
Relying on two courts of criminal appeals decisions, the
Government argues that when a child is asked to expose herself
for an adult’s lustful purpose, and that child knows what is
being asked is wrongful, then that child has been solicited to
commit indecent liberties with a child. United States v.
Conway, 40 M.J. 859, 862 (A.F.C.M.R. 1994); United States v.
United States v. Sutton, No. 09-0458/AF
9
Harris, No. NMCCA 9901587, 2003 CCA LEXIS 269, *3 (N-M. Ct.
Crim. App. Nov. 26, 2003) (unpublished).7 We disagree.
In both Conway and Harris, each appellant asked his stepdaughter
to allow him to see her naked. Both were charged with
soliciting their step-daughters to commit indecent liberties
with a child. In affirming the convictions, both decisions
focused on whether the victims knew the request was wrongful
(finding that they did) and whether the solicited conduct
constituted part of a criminal venture. Neither decision,
however, specifically addressed whether it was legally possible
for the victims to commit the offense.
As noted, the specification in question reads as follows:
Specification 1: TECHNICAL SERGEANT JAMES W. SUTTON
. . . [d]id, at or near the State of Texas, between on
or about 1 December 2005 and on or about 1 February
2006, wrongfully solicit his dependant step-daughter,
[PS], a female under 16 years of age, not the wife of
the accused, to engage in indecent liberties by asking
her to lift her shirt and show him her breasts for
$20.00, or words to that effect, with intent to
gratify the lust of the accused.
The elements of “soliciting another to commit an
offense” under Article 134, UCMJ, are:
(1) That the accused solicited or advised a certain
person or persons to commit a certain offense
under the code other than one of the four
offenses named in Article 82;
7 Both Conway and Harris relied on United States v. Oakley, 7
C.M.A. 733, 23 C.M.R. 197 (C.M.A. 1957), and United States v.
Higgins, 40 M.J. 67 (C.M.A. 1994), however, neither of those
cases dealt with situations in which the individuals solicited
to commit the offense in question were also the victim of that
offense.
United States v. Sutton, No. 09-0458/AF
10
(2) That the accused did so with the intent that the
offense actually be committed; and
(3) That under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature
to bring discredit upon the armed forces.
MCM pt. IV, para. 105.b (2005 ed.). The first element of
solicitation under Article 134, UCMJ, requires the accused to
solicit another person to commit an offense. Here the
Government alleges that Sutton solicited P.S. to commit the
offense of indecent liberties with a child. The elements of the
Article 134, UCMJ, offense of indecent acts or liberties with a
child are as follows:
(2) No physical contact.
(a) That the accused committed a certain act;
(b) That the act amounted to the taking of
indecent liberties with a certain person;
(c) That the accused committed the act in the
presence of this person;
(d) That this person was under 16 years of age
and not the spouse of the accused;
(e) That the accused committed the act with
the intent to arouse, appeal to, or
gratify the lust, passions, or sexual
desires of the accused, the victim, or
both; and
(f) That, under the circumstances, the conduct
of the accused was to the prejudice of
good order and discipline in the armed
forces or was of a nature to bring
discredit upon the armed forces.
MCM pt. IV, para. 87.b(2) (2005 ed.). The elements of indecent
liberties with a child clearly contemplates two actors, as the
Manual refers to “the accused” and refers to the victim as a
United States v. Sutton, No. 09-0458/AF
11
“certain person” or “this person.” See MCM pt. IV, para.
87.b(2)(b)-(e). In contrast, the specification under which
Sutton was charged presumes P.S. could have committed the act of
indecent liberties with a child on herself.
While the evidence established that Sutton did ask P.S. to
lift her shirt, the act of P.S. lifting her shirt, in this
context, could not constitute the criminal offense of indecent
liberties with a child by P.S.8 Under the factual circumstances
presented here, a charge of indecent liberties with a child
could have alleged that Sutton asked P.S to lift her shirt to
show him her breasts in order to gratify his lust. That,
however, was not the charge and instead the Government chose to
charge Sutton with soliciting P.S. to commit the offense of
indecent liberties with a child. Because P.S. cannot commit the
offense of indecent liberties with a child on herself, the
specification fails to state an offense.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The finding of guilty to the
charge and its specification and the sentence are set aside.
The charge and specification are dismissed.
8 Even if we were to assume that P.S. could be considered an
aider or abettor under Article 77, UCMJ, the charge would still
fail as she did not share in any criminal purpose.
Monday, April 5, 2010
Webster Smith. Are There Loose Cannons At The CAAF?
The majority opinion was little more than military mumbo-jumbo. After so much jibber-jabber, the majority opinion managed to protect the sacred cow, the white female. Only in America, with its slave history and its slave culture can the best legal minds we have been able to assemble, so far, come to such a warped decision.
The slave culture in America lies just beneath the surface in every interaction between black and white. It is the albatross around the neck of America. It is the unwelcomed guest at every table. 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." A little soap and sensitivity training has not been able to wash away this stain. It is a perpetual curse on our institutions.
A 3-2 decision is what I had predicted, but I anticipated that it would be a reversal and not an affirmation. This does nothing to clarify the law on these issues. This does not inspire confidence in their decisions.
I would rather it had been a 5-0 reversal or even a 5-0 affirmation. At least that would have shown that the judges were firmly convinced on the issues and the law. This decision is neither hot nor cold. It is luke-warm. Military justice is not rushing towards certainty nor egalitarian enlightenment, but rather it is sloughing towards gamorrah. What does this say about the evolution of American military justice of the moral progress of race relations in America?
Those who are looking to champion human rights at Guantanamo Bay, Cuba would be better served to look closer to home. Webster Smith might have receiveded more sympathetic attention if he had served his six month prison sentence with the terrorist suspects in Gitmo, Cuba. Those terrorists only wanted to blowup America; they did not want to fraternize with white American girls. They did not set off our slave culture racial polarizing defenses. The terrorists wanted to make war; Webster Smith wanted to make love. The mantra of the 60's, Make love not war, has no currency in the 21st Century.
More than 66 years after the court-martial of Jackie Robinson, military justice is still being used as a weapon against soldiers and sailors of color. Just as the Death Penalty replaced lynching in many Southern States, military justice has come to use due process and military law as a tool to keep Blacks in their place. The slave culture lives on in the hearts and minds of the white military lawyers along with institutionalized racism.
This entire Webster Smith saga has been like a bad dream for the Coast Guard Academy and the Smith family. It has done nothing to advance the relations between Black and white military members. To have watched this episode of Coast Guard history unfold from the midnight abduction of cadet Webster Smith from his cadet barracks to the CAAF decision is like sleep-walking backwards through American history from 1863 towards the Fugitive Slave Laws. That is how slave-catchers used to operate. Blacks are still paying the price for white guilt and white fear.
The slave culture in America lies just beneath the surface in every interaction between black and white. It is the albatross around the neck of America. It is the unwelcomed guest at every table. 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." A little soap and sensitivity training has not been able to wash away this stain. It is a perpetual curse on our institutions.
A 3-2 decision is what I had predicted, but I anticipated that it would be a reversal and not an affirmation. This does nothing to clarify the law on these issues. This does not inspire confidence in their decisions.
I would rather it had been a 5-0 reversal or even a 5-0 affirmation. At least that would have shown that the judges were firmly convinced on the issues and the law. This decision is neither hot nor cold. It is luke-warm. Military justice is not rushing towards certainty nor egalitarian enlightenment, but rather it is sloughing towards gamorrah. What does this say about the evolution of American military justice of the moral progress of race relations in America?
Those who are looking to champion human rights at Guantanamo Bay, Cuba would be better served to look closer to home. Webster Smith might have receiveded more sympathetic attention if he had served his six month prison sentence with the terrorist suspects in Gitmo, Cuba. Those terrorists only wanted to blowup America; they did not want to fraternize with white American girls. They did not set off our slave culture racial polarizing defenses. The terrorists wanted to make war; Webster Smith wanted to make love. The mantra of the 60's, Make love not war, has no currency in the 21st Century.
More than 66 years after the court-martial of Jackie Robinson, military justice is still being used as a weapon against soldiers and sailors of color. Just as the Death Penalty replaced lynching in many Southern States, military justice has come to use due process and military law as a tool to keep Blacks in their place. The slave culture lives on in the hearts and minds of the white military lawyers along with institutionalized racism.
This entire Webster Smith saga has been like a bad dream for the Coast Guard Academy and the Smith family. It has done nothing to advance the relations between Black and white military members. To have watched this episode of Coast Guard history unfold from the midnight abduction of cadet Webster Smith from his cadet barracks to the CAAF decision is like sleep-walking backwards through American history from 1863 towards the Fugitive Slave Laws. That is how slave-catchers used to operate. Blacks are still paying the price for white guilt and white fear.
Webster Smith. What Went Wrong at the CAAF?
My faith in humanity and the future of military justice is strengthened by one thing. That is that the Chief Judge was in the Dissent. At least, the leader of the Court saw the issues clearly and correctly. I am dissapointed at his apparent lack of leadership. A stronger leader or a more forceful and dynamic personality would have been able to show the majority and the female member the error of their ways.
Chief Justice of the Supreme Court Earl Warren was such a leader. He demonstrated exceptional leadership skills in the handling of the Brown v Board of Education case. That was a unanimous 9-0 Decision at a very turbulent period in American History. Racial tensions were at an all time high in America. Yet, Earl Warren was able to convince the all white Supreme Court to render a decision that would speak with an unequivocal voice. There was no wiggle room. A 9-0 Decision was much more forceful and was much better received than a 8-1, or 7-2, or 6-3, or a 5-4 decision. That was leadership; that was history; that was America during one of her finest hours.
Are there a bunch of loose cannons at the CAAF? Is this a fractured court? Do some of these judges have their own political agenda and their own constituencies? What hidden agendas could they have? What constituencies could they be serving? Are they slaves to their own prejudices? Was Baker clearly the swing vote? Being a female, did that have anything to do with how she perceived the issues? Did the case for her come down to simply a case of black and white?
Did the judges write their own opinions? Did some immature clerk write the decision and the judge merely sign off on it? Was the clerk a first generation American who managed to go from blue-collar to professional in one generation? That is happening quite a lot in America recently. In my discussions with some recent Asian lawyers I am apalled at their lack of understanding and perception when it comes to Civil Rights laws and issues. Also, consider who the chief interpreter of the Patriot Act was. It raised a lot of controversy in middle America and among civil libertarians.
(Cicero said: In time of war, the laws fall silent. In our own era, few proponents of that doctrine have been as influential or forceful as Berkeley law professor John Yoo, who in the wake of the terrorist attacks of September 11, 2001, worked within the Office of Legal Counsel at the Justice Department to lay the legal foundations for the Bush administration's approach to the war on terror. Despite repeated pleas from civil liberties groups, crucial memoranda authored by Yoo, justifying controversial tactics ranging from coercive interrogation to warrantless surveillance, remained closely guarded secrets.)
Chief Judge Effron was clearly right in his analysis. Why could he not get Judges Stucky, Ryan and Baker to see the issues more clearly?
The Webster Smith case signals a low point in military justice, American history, and inter-racial relations. Just when Blacks were beginning to think it was safe to come out of the shadows on American society, white American sends a clear signal and a reminder that Blacks are not welcome.
Chief Justice of the Supreme Court Earl Warren was such a leader. He demonstrated exceptional leadership skills in the handling of the Brown v Board of Education case. That was a unanimous 9-0 Decision at a very turbulent period in American History. Racial tensions were at an all time high in America. Yet, Earl Warren was able to convince the all white Supreme Court to render a decision that would speak with an unequivocal voice. There was no wiggle room. A 9-0 Decision was much more forceful and was much better received than a 8-1, or 7-2, or 6-3, or a 5-4 decision. That was leadership; that was history; that was America during one of her finest hours.
Are there a bunch of loose cannons at the CAAF? Is this a fractured court? Do some of these judges have their own political agenda and their own constituencies? What hidden agendas could they have? What constituencies could they be serving? Are they slaves to their own prejudices? Was Baker clearly the swing vote? Being a female, did that have anything to do with how she perceived the issues? Did the case for her come down to simply a case of black and white?
Did the judges write their own opinions? Did some immature clerk write the decision and the judge merely sign off on it? Was the clerk a first generation American who managed to go from blue-collar to professional in one generation? That is happening quite a lot in America recently. In my discussions with some recent Asian lawyers I am apalled at their lack of understanding and perception when it comes to Civil Rights laws and issues. Also, consider who the chief interpreter of the Patriot Act was. It raised a lot of controversy in middle America and among civil libertarians.
(Cicero said: In time of war, the laws fall silent. In our own era, few proponents of that doctrine have been as influential or forceful as Berkeley law professor John Yoo, who in the wake of the terrorist attacks of September 11, 2001, worked within the Office of Legal Counsel at the Justice Department to lay the legal foundations for the Bush administration's approach to the war on terror. Despite repeated pleas from civil liberties groups, crucial memoranda authored by Yoo, justifying controversial tactics ranging from coercive interrogation to warrantless surveillance, remained closely guarded secrets.)
Chief Judge Effron was clearly right in his analysis. Why could he not get Judges Stucky, Ryan and Baker to see the issues more clearly?
The Webster Smith case signals a low point in military justice, American history, and inter-racial relations. Just when Blacks were beginning to think it was safe to come out of the shadows on American society, white American sends a clear signal and a reminder that Blacks are not welcome.
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