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March 25th, 2013 This will be the final post to this website. Save This Soldier is self-explanatory. It was to inform you, to tell the story of military injustice, and to ask for help. On November 16th our legal counsel filed the following appeal (without charge to our family) because they fully believe in the injustice served by this case. I will comment after you read the appeal.
IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
UNITED STATES, ) Appellee ) ) PETITION FOR RECONSIDERATION v. ) ON BEHALF OF APPELLANT ) Kelly A. STEWART ) Sergeant First Class (E-7), ) ACCA Dkt. No. 20090751 United States Army, ) USCAAF Dkt. No. 13-0022/AR Appellant )
TO THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: SFC Kelly A. Stewart, through undersigned counsel and pursuant to Rule 31 of this Court’s Rules of Practice and Procedure, respectfully requests the Court reconsider its 15 November 2012 order denying Appellant’s petition for grant of review. Reconsideration is appropriate because this Court has not considered Appellant’s petition for a grant of review in the context of ineffective assistance of counsel. Appellant therefore requests this Court reconsider his petition for grant of review in light of the following issue: WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR (1) FAILING TO REQUEST THE PRODUCTION OF EVIDENCE FROM THE GERMAN COURT PURSUANT TO A LETTER ROGATORY RATHER THAN ACQUIESCING TO THE GERMAN PROSECUTOR’S RESPRESENTATION THAT THE EVIDENCE WOULD NOT BE TURNED OVER; AND (2) FAILING TO REQUEST THE MILITARY JUDGE ABATE THE PROCEEDINGS UNDER R.C.M. 703(f)(2) UNTIL SUCH TIME AS A GERMAN COURT COULD ISSUE AN ORDER PERSUANT TO A LETTER ROGATORY OR UNTIL KH CONSENTED TO PRODUCTION OF THE RECORDS. Standard of Review Claims of ineffective assistance of counsel are reviewed de novo.[1] Argument The Sixth Amendment recognizes the right to the effective assistance of counsel “because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” [2] This right to effective assistance of counsel extends to servicemembers at court-martial.[3] Claims of ineffective assistance of counsel at court-martial are analyzed under the framework established by the Supreme Court in Strickland v. Washington.[4] In order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel’s performance was deficient, and the deficiency resulted in prejudice.[5] Accordingly, Appellant bears the burden with respect to three questions: 1. Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case?
2. If they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?
3. If ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had reasonable doubt respecting guilt?[6]
Appellant’s defense team was ineffective because it should have invoked the procedures available through international law by requesting the court-martial to issue a letter rogatory to the German court requesting KH’s mental health records; it should have recognized that the final authority on the availability of the evidence was the German courts as opposed to the German prosecutor; and it should have specifically requested the military judge abate the proceedings pursuant to R.C.M. 703(f)(2) until either the German court ordered the records produced or KH agreed to their production. There is a means by which a criminal defendant in a U.S. court can obtain evidence in a foreign country. As attorneys regularly practicing in a foreign country, Appellant’s trial defense team should have been familiar with the methods available to obtain evidence that is otherwise beyond the scope of compulsory process by courts-martial. In criminal cases where judicial assistance is required in obtaining evidence from German authorities, in the absence of a treaty[7] the proper method is for defense counsel to make the request pursuant to letters rogatory in accordance with Article 5(j) of the Vienna Convention on Consular Relations[8]. In the context of foreign relations, letters rogatory is defined by federal regulation: In its broader sense in international practice, the term letters rogatory denotes a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. In United States usage, letters rogatory have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity. The legal sufficiency of documents executed in foreign countries for use in judicial proceedings in the United States, and the validity of the execution, are matters for determination by the competent judicial authorities of the American jurisdiction where the proceedings are held, subject to the applicable laws of that jurisdiction. See § 92.66 for procedures in the use of letters rogatory requesting the taking of depositions in foreign jurisdictions[9]
Letters rogatory may be sent directly from a U.S. court to a foreign court, but some foreign countries require that they be sent through diplomatic channels.[10] Ultimately it was the German court rather than the German prosecutor that should have determined whether KH’s records were to be produced. The defense team should have drafted a letter rogatory for signature of the military judge; whether it subsequently could have been sent directly to the German court or whether it was required to be transmitted via diplomatic channels was something the parties could have determined, but in any event, the decision would have been made by the body empowered to make it. By accepting out of hand the government’s contention that the German prosecutor denied production of the records without properly invoking the authority of the German court through the customarily accepted use of letters rogatory, Appellant’s counsel lost his best chance of obtaining the records without KH’s consent. Finally, defense counsel should have specifically invoked R.C.M. 703(f)(2) and requested abatement of the proceedings until such time as a German court ruled on his request for documentary evidence pursuant to a letter rogatory or until KH consented to produce the records. If the German court had ordered the records produced, Appellant could have used those records to challenge KH’s credibility. Irrespective of whether defense counsel should have pursued the records via letters rogatory, he should have requested abatement in any event. The records were beyond the scope of compulsory process. They were more than merely relevant; as mental health records reflecting KH’s ability to perceive and recall events, or reflecting bias or motive to misrepresent, in this case where the only evidence was KH’s testimony, these records were of such central importance to the case that the military judge would have been required to abate the proceedings until they were produced. The result in Appellant’s court-martial would have been different. Appellant believes that the records contain information that would have severely damaged KH’s credibility, and if the defense counsel had requested abatement and the German court had ordered the records produced, Appellant could have, at a minimum, used them in its cross-examination of KH. The defense could potentially have used them to locate other evidence and witnesses, depending on what the records reveal.[11] If Appellant had requested abatement of the proceedings, and if the German court did not order the records produced and KH persisted in her refusal to release the records, the convening authority would likely have withdrawn the charges. WHEREFORE Appellant so prays. Respectfully submitted,
William E. Cassara CAAF Bar No. PO Box 2688 Evans, GA 30809
706-860-5769
Philip D. Cave CAAF Bar No. 22647 1318 Princess St., Alexandria, VA 22314 703-298-9562 mljucmj@court-martial.com
CERTIFICATE OF COMPLIANCE WITH RULE 24(d) 1. This brief complies with the type-volume limitation of Rule 21(b) because it contains 7,817 words. 2. This brief complies with the typeface and type style requirements of Rule 37 because it has been prepared in a monospaced typeface using Microsoft Word Version 2007 with Courier New 12-point typeface.
Date: _______ William E. Cassara PO Box 2688 Evans, GA 30809 CAAF Bar No. ________ 706-860-5769
CERTIFICATE OF FILING AND SERVICE
I certify that a copy of the foregoing was mailed to the Court and delivered to opposing counsel on ________.
William E. Cassara PO Box 2688 Evans, GA 30809 CAAF Bar No. ________ 706-860-5769
[1] United States v. Green, 68 M.J. 630 (C.A.A.F 2010). [2] Strickland v. Washington, 466 U.S. 668, 686 (1984). [3] United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005). [4] Id., citing Strickland v. Washington, 466 U.S. 668 (1984). [5] Strickland, 466 U.S. at 687. [6] United States v. Polk, 32 M.J. 150 (C.M.A. 1991)(quotations and citations omitted).
[7]
After Appellant’s trial, but before the post-trial Article
39(a) session, the United States and the Federal
Republic of Germany signed a Mutual Legal Assistance treaty in
Criminal Matters on 14 October 2003. See Mutual Legal
Assistance Treaty with Germany, Treaty Doc. 108-27, 108th
Cong. 2d Session. On 18 April 2006 the United
States and the Federal Republic of Germany signed a Supplementary
Treaty to the Mutual Legal Assistance Treaty in Criminal Matters.[7]
See Mutual Legal Assistance Agreement with the European
Union, Treaty Doc. 109-13, 109th Congress, 2d Session;
Mutual Legal Assistance Treaties with the European Union, Exec. Rept.
110-13, 110th Cong. 2d Session.
According to the U.S. Department of State, these treaties entered into
force on 18 October 2009. See Department of State
Judicial Assistance German Circular, available online at
www.travel.state.gov/law/judicial/ [8] Vienna Convention on Consular Relations, 1963, Article 5(j). Article 5(j), which describes consular functions in general, provides for “transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other mater compatible with the laws and regulations of the receiving State.” [9] Title 22 Code of Federal Regulations, Foreign Relations, Chapter 1, Subchapter J, Part 92.54, “Letters Rogatory” defined, Government Printing Office, 2009. [10] 22 C.F.R. Part 92.66(b). [11] For example, KH claimed that she had been sexually assaulted by an orderly while in psychiatric care; her records may reveal a pattern of false allegations. R. at 1105 submission, Encl. 2. Today we received the following response to the above appeal: Sorry to drop
this on you right before Christmas. We knew it was a long shot, and
they denied our request for reconsideration. I am so tired of this
system. Their response to our appeal reads as follows:
United States Court of Appeals for the Armed Forces Washington, D.C. ) USCA Misc. Dkt. No. 13-0022/AR UNITED STATES, ) Crim. App. Dkt. No. 20090751 Appellee ) v. ) ) ) O R D E R Kelly A. ) STEWART, ) Appellant )
On consideration of Appellant’s petition for reconsideration of this Court’s order issued November 15, 2012, it is, by the Court, this, 19th day of December, 2012, ORDERED: That said petition for reconsideration is hereby denied. For the Court, /s/ William A. DeCicco Clerk of the Court cc: The Judge Advocate General of the Army Appellate Defense Counsel (CASSARA, Esq.) Appellate Government Counsel (BRANTLEY) Please note there is no reason for this denial. Simply another statement without reason. Obviously we have no further channels of appeal and injustice has been implemented by court members serving political direction without any kind of understanding of common sense nor care for their fellow soldier. I find each of them despicable and only wish them a similar life to that of my son's who, despite being innocent, has been convicted of a crime. A simple read of the book Three Days In August on Amazon.com by those supposed judicary specialists would have lead to a complete reversal of this conviction. But, each are obviously concerned more about their military careers rather than justice. May you rot in hell. Throughout this story we have been supported by few, but those who did are so much appreciated. I will not put the names here because you know who you are, just as those who simply came here to read the events without helping us. I will say this. Beverly Perlson of www.thebandofmothers.com, Bob McCarty of www.bobmccarty.com and Mr. Bill Cassara of www.courtmartial.com have been rocks we leaned upon for support and we well never forget them. Also we will never, ever, forget those who failed to step forward to help. Two children are without their Father. A hero of our world is living in poverty in conditions that are despicable. One family is bankrupt and a second was nearly placed in the same situation. Many, many tears have been shed. A Family has been destroyed. Why? I will also never forget the accuser. May God bless and understand her.
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