Army Judge Violates Soldier’s Constitutional Rights

EDITOR’S NOTE:  Slightly modified for stand-alone publication, the excerpt (below) from my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice, provides graphic details of then-Army Sgt. 1st Class Kelly A. Stewart‘s time on the run after being wrongfully-convicted of a number of sexual offenses by a U.S. Army court-martial panel in Germany during three days in August 2009.

Kelly Stewart returns from a mission in Iraq.

Prior to the start of the trial, attorneys for both sides met with Judge Kuhfahl in conference to discuss whether or not the subject of accuser Heinrich’s medical records from a lengthy stay at a mental institution in 2004 could be raised during the trial.

“We do not want them talking about this mental institution, that Helga was there, or that the victim stayed in that mental institution,” said Captain O’Malley, trying to convince Judge Kuhfahl to side with the government. “We do not believe that’s relevant to any of the charges about where they met or that they stayed in an institution in 2004 or 2005, under the facts of this case.”

Who is Helga? Helga Gowar is a woman Heinrich met during her four-month stay in a mental institution where both were patients in 2004.

“We have no knowledge beyond what we were told by the victim as to the reason for that stay,” Court countered on Stewart’s behalf.

“We believe that her mental state is always in issue. We believe that her response to stress, which is apparently her stated reason for going to that institution, is in issue here.”

Unfortunately for Stewart, Heinrich invoked her rights under German law to not disclose her medical records. Likewise, the German government refused to release copies of Heinrich’s medical records and spelled out the reasons for their decision in a

Due to other obligations we are unable to exercise the right to observe the court-martial on 18 and 19 August 2009 in Vilseck.

Your request to obtain the treatment records of Klinik Christophsbad, Faurndauer Strasse 6-28, 73035 Goeppingen for the victim Greta J. Heinrich in the years 2004 and 2005 by court-order cannot be granted.

Even if you assume, with the dominant opinion, that there is no prohibition of seizure, in accordance with section 97, paragraph 1 German Trial Procedural Code (StPO), then, under the given circumstances, forcible access of Health Records by procedural methods against the will of the victim, would have to be considered, under general maxims, in violation of the principle of proportionality in a special sensitive area of the private sphere.

In the absence of a (currently missing) concrete claim of evidence and basis in fact, such an action would only serve the non-permissible purpose of baseless inquiry of the victim and the hoped for discovery of relevant circumstances (see Federal Supreme Court Decision NStZ 1997, 562).

The fact that the trial was taking place in a U.S. military court based upon U.S. law (i.e., the Uniform Code of Military Justice) seemed not to matter to Judge Kuhfahl.

Asked by Judge Kuhfahl why they objected to the prospect of him allowing the defense to ask Heinrich why she was refusing to turn over her medical records, Captain O’Malley said, “There’s no relevance shown by that at all, Your Honor.”

Conversely, Court argued that the question “goes to candor with the tribunal” and said, “She has obviously got something that she wishes to withhold, and without that question, the panel will not have that impression of her; will think that she has been candid and told us everything, and that is not true.”

Judge Kuhfahl ruled as follows, saying, “The court does not find that there’s any matter of consequence that that question would address, indicating anything is more or less probable in this case; therefore, the government objection is sustained, and I’m not going
to allow that question.”

Stewart and his attorneys were stumped by the military judge’s ruling.

“It’s my Constitutional right to have all evidence looked at, or all items looked at, by a judge,” Stewart said. “Nothing becomes evidence until the judge deems it as evidence, but a judge still has to review it to determine whether it’s evidence or not.

“If the judge chooses not to look at a particular item to determine whether it’s evidence or not, then he’s violated my Constitutional rights,” Stewart explained, reiterating that Judge Kuhfahl had failed him by not petitioning or subpoenaing Heinrich’s medical records.

“He would still determine whether those records were relevant or not, whether they would be admissible or not—that’s still up to him,” Stewart explained. “If I’m saying there was possible evidence there, he has to protect my rights as the accused to look at that to
determine whether it is or isn’t.

“He didn’t do that,” Stewart said. “That’s where he violated my rights.”

Panel members never got to hear about Heinrich’s stay in a mental institution. They only got to hear from Heinrich that she was there as a victim of burnout. A major victory for the

“There was never a discussion about what Greta was in (the mental institution) for,” Stewart said. “She testified that she was only in for simple ‘burnout,’ but she would never provide her medical records (and) the jurors never got to know that.

“If I was a juror,” Stewart said, “and I found out that this chick was saying that someone had raped her, that she had spent time in a mental institution… and now she’s saying that this American service member…is being accused of rape, it would add a shadow of doubt in my mind and any normal person’s mind.”

More details about the events leading up to and following Stewart’s court-martial can be found in the book, Three Days In August.  It’s available in paperback and ebook via most online booksellers, including

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