Appeals Court Affirms Green Beret’s Conviction and Sentence — UPDATED

In a short post Thursday evening, I shared heart-breaking news about the Army Court of Criminal Appeals’ decision to uphold the guilty verdict and sentence that was handed down to Army Green Beret Sgt. 1st Class Kelly A. Stewart in August 2009.  I also promised to follow up with more details about the court’s decision.  Here goes it.

Sgt. 1st Class Kelly Stewart

More than three months after Stewart and members of his defense team appeared for a hearing before the ACCA at Fort Belvoir, Va., the court’s three judges issued a unanimous nine-page opinion that appears to be little more than an indictment of the highly-decorated combat veteran‘s defense team.  Below are pertinent excerpts from the court’s written opinion:

• It appears clear from our review of the record that the defense counsel’s failure to make a timely pretrial motion for production of (the accuser’s) mental health records from the 2004 and 2005 time period or to request relief under R.C.M. 703(f)(2) constituted a conscious strategic decision not to fully litigate the issue and amounted to waiver of the request for production or other relief, leaving no error for us to correct on appeal.  See United States v. Campos, 67 M.J. 330 (C.A.A.F. 2009).

If this issue had been litigated, the military judge could have provided findings containing relevant reasons the records were necessary.

In the absence of such a defense motion, none of these options was developed or addressed on the record.

Appellant never demonstrated to the military judge, either through cross-examination of (the accuser) or the government expert witness or argument, that (the accuser’s) 2004 and 2005 mental health records contained relevant information.

There is no indication in the record that appellant’s defense counsel ever requested a mental health expert or requested an independent mental health examination of (the accuser) to determine whether (the accuser) had any psychiatric issues or history that would call into question her ability to recall or remember events or her motive or ability to fabricate.

The military judge allowed the defense counsel to cross-examine (the accuser) about her prior psychotherapy treatment, and appellant’s defense counsel did not move the court for production of (the accuser’s) prior mental health records nor did he request relief under R.C.M. 703(f)(20 in the event they were not produced.

Defense counsel cannot consciously decide not to pursue the relevancy of these records and then attack the witness for refusing to voluntary forfeit her privacy by providing them.

The judges — for whom identifiable information beyond their last names (Kern, Krauss and Yob) might require a Freedom of Information Act request to obtain — summed up their collective opinion as follows:

Kelly Stewart returns from a mission in Iraq.

We have considered the record of trial, the assigned errors, the briefs submitted by the parties, the oral arguments by both parties on the assignments of errors raised, and the Petition for New Trial.  The Petition for New Trial is denied.  on consideration of the entire record, we hold the findings of guilty and sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence are AFFIRMED.

Contrary to the court’s stated opinion, there are many more factors involved than the alleged shortcomings on the part of the accused soldier’s defense team.  I know, because I read the Record of Trial, and I’m confident that anyone who reads it will agree.

As a result of this court’s opinion, however, Stewart is left with one level of appeal within the military justice system, the Court of Appeals of the Armed Forces.  If justice continues to elude him at that level, his only remaining options are a favorable Supreme Court ruling or a presidential pardon — neither very likely.  That means it will be up to the American people to stand up for wrongfully-convicted soldier’s like Stewart.

If you still have an open mind about this soldier, I encourage you to get a “second opinion” by reading my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.

Based on extensive interviews and never-before-published details taken from the actual Record of Trial, Three Days In August paints a portrait of military justice gone awry that’s certain to make your blood boil.

After you read the book, I’m confident you’ll want to help me get the word out about this grave miscarriage of justice.

Thanks in advance for your help!

UPDATE 7/30/12 at 12:31 p.m. Central:  This morning, a Green Beret who served with SFC Kelly A. Stewart contacted me to let me know how outraged he is about the recent Army Court of Criminal Appeals opinion affirming Stewart’s conviction. He went so far as to tell me he left the Army early because of the way his brother in arms was treated. More on this later.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

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