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.

Army Court Affirms Green Beret’s Conviction

Late this afternoon, I received news that a three-judge panel at the Army Court of Criminal Appeals has affirmed the conviction of Sgt. 1st Class Kelly A. Stewart, the highly-decorated Green Beret combat veteran whose life is chronicled in my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.

While this ruling is very disappointing, it does not signal the end of the military justice appeals process.  The Court of Appeals of the Armed Forces stands as the final level at which Stewart’s case can be appealed.

I’ll share more details after I read the entire opinion.

A nonfiction book based on never-before-published details obtained via interviews and access to the actual Record of Trial, Three Days In August, is certain to make your blood boil.  It’s available in paperback and ebook via most online booksellers, including Amazon.com.

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.

Newspaper Sits on Truth About Green Beret’s Bogus Conviction

Kelly A. Stewart

ON AUGUST 20, 2009, Stars and Stripes editors were understandably quick to publish Sgt. 1st Class Kelly A. Stewart‘s mugshot after he was convicted and sentenced by a court-martial panel during three days in August 2009.  Since then, however, they have been unwilling to publish details of what actually took place inside a U.S. military courtroom in German and resulted in the wrongful conviction of a highly-decorated Green Beret combat veteran.

ONE-HUNDRED FIFTY DAYS AGO, I was interviewed by John Vandiver, a Stuttgart-based reporter for the 70-year-old publication for members of the U.S. military community in Europe.  The subject of the interview was the book I had written and published last fall about Stewart’s life and wrongful conviction, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.

FIFTY-TWO DAYS LATER, it became clear that Stripes editors were not interested in publishing the nitty-gritty details of the case.

In a Feb. 27 post, I speculated about several possible reasons why they had yet to run an article based on the interview.  Among the reasons I cited was the fact that Vandiver, through no fault of his own, was unable to land the extensive interviews with key players or obtain a copy of the Record of Trial — two things that make my book about Stewart’s case so captivating at the same time as it dismantled the prosecution’s case against the soldier.

ONE-HUNDRED FIFTY DAYS after my interview with Vandiver, Stripes continues to sit on the story about my book and, in turn, continues to sit on the facts underlying his wrongful conviction, many of which were never heard by members of the 10-member court-martial panel that heard the case.

TODAY, on the day Stewart’s case went before the Army Court of Criminal Appeals, Stripes published a 400-word piece, Ex-Green Beret begins appeal of sex assault conviction.  Unfortunately for those who hunger for the truth, the article made no mention of the book or the fact that its author — yours truly — had been interviewed about it almost six months ago.

WHAT AM I TO THINK NOW?

I’m convinced Stripes editors are content running interference for a system that wrongfully convicted an elite soldier based almost solely on the words of an accuser with a history of mental issues that were never allowed to surface during the trial.  Apparently, they don’t fear being held responsible when tens of thousands of members of the military eventually learn about Stewart’s case and realize, “That could’ve been me!”

Want to find out what Stripes editors are not willing to share with you?  Read Three Days In August, a book that paints a portrait of military justice gone awry that’s certain to make your blood boil.

Three Days In August is available in paperback and ebook via most online booksellers, including Amazon.com.

UPDATE 4/20/12 at 12:33 p.m. Central:  This morning, I attempted to leave a comment below the above-referenced story published by Stripes yesterday.  Hopefully, by Monday morning, the site’s moderator will have approved my comment.

UPDATE 12/28/2012 at 9:43 a.m. Central:  Five days ago, I shared a new observation about the latest Stripes article on Stewart’s case.  It’s a doozie.  See German Police Detective Has Memory Issues Like Accuser.

Soldiers’ Hearings to Take Place Four Days Apart in April

In 22 and 26 days, respectively, appeal hearings will be held for two U.S. Army soldiers, Sgt. 1st Class Kelly A. Stewart and 1LT Michael C. Behenna.

The hearings could leave permanent and indelible marks on the lives of these young men who served their country with honor during times of war, were wrongfully convicted and sentenced for crimes they did not commit and, eventually, became good friends while imprisoned at the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan.  Better still, they could go a long way toward making right the worst kinds of wrongs.

THE HEARINGS

Before I share more details about these soldiers and their friendship behind bars, allow me to share information about these soldiers’ respective cases and hearings scheduled to take place next month:

Kelly Stewart returns from a mission in Iraq.

• On April 19 at 10 a.m. Eastern, a three-judge panel at the Army Court of Criminal Appeals will begin hearing the case of SFC Stewart, the Green Beret whose life and wrongful conviction are chronicled in my book, Three Days In August: A U.S. Army Special Forces Soldier’s Fight For Military Justice.  It represents his next-to-last level of the appeals process for the soldier after being convicted Aug. 23, 2009, of sex crimes against a German woman spending and being sentenced to 8 years behind bars despite, among other things, a complete lack of evidence and witnesses to corroborate his accuser’s claims.  Stewart’s hearing is OPEN TO THE PUBLIC and will take place inside a building at 9275 Gunston Road on the grounds of Fort Belvoir, Va. More details and update here.

Michael Behenna Family & Fiance

On April 23 at 9 a.m. Eastern, a five-judge panel at the Court of Appeals for the Armed Forces will begin hearing opening arguments in the final appeal of Lieutenant Behenna, the Edmond, Okla., native about whom I’ve written and published more than 60 articles since June 2009.  It represents the final level of the appeal process for the Army Ranger officer who, despite an expert witness’ conclusion that he acted in self defense (see this post and this post for more details), was convicted May 16, 2008, and sentenced to 25 years in prison for the killing of a known Al-Qaeda operative in Iraq before twice having his sentence reduced by five-year blocks to 15 years.  Behenna’s hearing is OPEN TO THE PUBLIC and will take place inside a courthouse located at 450 E. Street, Northwest, Washington D.C.  More details and updates here.

THE FRIENDSHIP BEHIND BARS

During an interview about five months before I published the book about Stewart’s case, I asked him about his relationships with Behenna inside the walls of the notorious military prison.  His lengthy answers included several examples of how an unofficial hierarchy and terms of respect exist among inmates.

“Where you sit when it’s movie night in your respective sections pretty much shows who you are,” Stewart said.  “The guy that’s in the front row is the one that’s running things.  In each one of the rows, the guy that’s in the center of that row runs that thing for that row.  Everybody knows that.”

“If you’re a front-row guy and you get up and leave, you hand the remote back to the guy in the center of the next row behind you,” he continued.  “Then, when we go to the chow hall, there’s limited seating area — and, just like you see in every movie, certain people only sit in certain areas and (everyone) knows that.”

Asked where he and Mike fit into the prison hierarchy, Stewart said, “Mike and I (could) sit wherever we want to in the chow hall.”

As for their relationship while behind bars, Stewart was clear:  “There’s nothing that I wouldn’t do for Mike in prison, and there’s nothing Mike wouldn’t do for me in prison.”

In August 2010, Stewart had his sentence reduced to 3 years, became eligible for parole and was released from prison March 31, 2011. Now on parole until August, he will be able to attend his hearing in person.  Behenna will not.

UPDATE 7/5/12 at 6:09 p.m. Central: Sad news. The Court of Appeals of the Armed Forces upheld by a 3-2 margin the conviction of Michael Behenna, according to this report. This means that, without a presidential pardon, the 29-year-old soldier will remain behind bars until he turns 40.

Stay tuned for more details as they become available!

Three Days In August is available in paperback and ebook via most online booksellers, including Amazon.com.

Attend my next book-signing event Saturday, May 19, 1 to 3 p.m., at Barnes & Noble in St. Peters, Mo.  Details here.