USAF 2* Facing court martial for sexual assault, dereliction of duty, behavior unbecoming of an officer and adultery.

[dapaterson]

Off topic, but the first thing I noticed is that his lawyer, Capt Grande, is carrying a grande coffee from Starbucks.

Air Force 2-star requests retirement in lieu of court-martial

Air Force Maj. Gen. Phillip Stewart has requested retirement from military service in lieu of a court-martial for charges that he sexually assaulted a subordinate officer during a business trip in April.

www.stripes.com

 

[dimsum]

Off topic, but the first thing I noticed is that his lawyer, Capt Grande, is carrying a grande coffee from Starbucks.

Air Force 2-star requests retirement in lieu of court-martial

Air Force Maj. Gen. Phillip Stewart has requested retirement from military service in lieu of a court-martial for charges that he sexually assaulted a subordinate officer during a business trip in April.

www.stripes.com

Yeesh.

Also, even more off topic, the USAF dress uniforms manage to make the RCAF uniforms look good.

 

[Infanteer]

What a crock - "can I retire quietly and go away rather than facing a trial for sexual assault?" That plea alone would make me send this to trial if I was a judge.

 

[FJAG]

What a crock - "can I retire quietly and go away rather than facing a trial for sexual assault?" That plea alone would make me send this to trial if I was a judge.

Unfortunately, I think the call comes from the convening authority which is a line USAF commander. If I read this right, the judge who ran what we would call a preliminary enquiry recommended dismissal of the rape charges. The convening authority chose not to and sent it to CM.

 

[brihard]

Unfortunately, I think the call comes from the convening authority which is a line USAF commander. If I read this right, the judge who ran what we would call a preliminary enquiry recommended dismissal of the rape charges. The convening authority chose not to and sent it to CM.

That’s surprising. It doesn’t speak to a particularly strong case. This case is certainly a mix of charges that are fully criminal, along with what are essentially service infractions. Messy.

 

[FJAG]

That’s surprising. It doesn’t speak to a particularly strong case. This case is certainly a mix of charges that are fully criminal, along with what are essentially service infractions. Messy.

And that's the problem.

Col. Brian Thompson, the military judge who presided over a preliminary hearing in October, recommended the sexual assault charge not be referred to a court-martial because of a lack of evidence from Air Force prosecutors, Addicott said. Instead, Thompson recommended the sexual assault charge be dropped and the other minor offenses be handled with administrative punishment.

Notwithstanding the recommendation:

Lt. Gen. Brian Robinson, convening authority and commander of Air Education Training Command, chose to move forward with formal changes against Stewart last month after reviewing Thompson’s report.

In the US system that's entirely within the legal process. An Article 32 hearing recommendation is not binding on the convening authority. Effectively a prosecutor at an Article 32 has the burden of proving that there was "probable cause" that an offence occurred, which is a considerably lower standard than at trial. Theoretically if the judge at a preliminary thinks that there was insufficient probable cause then most probably an offence will not be established at trial when the standard is "beyond a reasonable doubt." The difficulty with a "he said, she said" is how the trier of fact perceives the witnesses and the convening authority here felt the victim ought to be given an opportunity to be heard in full. To some extent there is also a trend to not summarily dismiss an alleged sexual assault by a superior officer claim but rather to let it go to trial.

 

[brihard]

And that's the problem.


Notwithstanding the recommendation:


In the US system that's entirely within the legal process. An Article 32 hearing recommendation is not binding on the convening authority. Effectively a prosecutor at an Article 32 has the burden of proving that there was "probable cause" that an offence occurred, which is a considerably lower standard than at trial. Theoretically if the judge at a preliminary thinks that there was insufficient probable cause then most probably an offence will not be established at trial when the standard is "beyond a reasonable doubt." The difficulty with a "he said, she said" is how the trier of fact perceives the witnesses and the convening authority here felt the victim ought to be given an opportunity to be heard in full. To some extent there is also a trend to not summarily dismiss an alleged sexual assault by a superior officer claim but rather to let it go to trial.

Yeah, I was gonna say that sounds a lot like a prelim.

 

[Blackadder1916]

Unfortunately, I think the call comes from the convening authority which is a line USAF commander. If I read this right, the judge who ran what we would call a preliminary enquiry recommended dismissal of the rape charges. The convening authority chose not to and sent it to CM.

There were some recent changes that limit the discretion of US commanders as convening authority particularly in regards sexual assault cases. However, as these changes are very recent they may not have been applicable when the accused was initially referred to an Art 32 hearing, but the impending changes may have been impetus for the convening authority to refer it for court martial. Perhaps a quiet word in the ear from a STC.

https://www.americanbar.org/groups/judicial/publications/judicial_division_record_home/2022/vol26-1/major-changes-in-uniform-code-of-military-justice/

The National Defense Authorization Act for Fiscal Year 2022 (NDAA22) (Pub. L. No. 117-81, 135 Stat. 1551 (2021) signed by President Biden on Dec. 27, 2021, includes historic changes to how the Armed Services will prosecute certain victim-centric offenses, including sexual assault, under the Uniform Code of Military Justice (UCMJ). The most consequential reform transfers authority from commanders to military lawyers to make decisions on whether to prosecute these specific offenses. These reforms must be fully implemented by December 27, 2023.

Statement by Secretary of Defense Lloyd J. Austin III on the Offices of Special Trial Coun

Secretary of Defense Lloyd J. Austin III announced that the four Offices of Special Trial Counsel—within the Army, the Department of the Air Force, the Navy, and the Marine Corps—have reached full

www.defense.gov

I am pleased to announce that the four Offices of Special Trial Counsel—within the Army, the Department of the Air Force, the Navy, and the Marine Corps—have reached full operational capability. With this milestone, prosecutorial discretion for 13 serious criminal offenses will be shifted away from commanders to specially trained and independent judge advocates who reside within the Offices of Special Trial Counsel and report directly to the Secretaries of the Military Departments.

Department of the Air Force’s Office of Special Trial Counsel fully operational

The OSTC will provide expert, independent and ethical representation of the United States in matters primarily involving victim-based offenses.

www.af.mil

And the US Code that applies

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section824a&num=0&edition=prelim

(c) Duties and Authorities.-
(1) In general.-Special trial counsel shall carry out the duties described in this chapter and any other duties prescribed by the Secretary concerned, by regulation.

(2) Determination of covered offense; related charges.-
(A) Authority.-A special trial counsel shall have exclusive authority to determine if a reported offense is a covered offense and shall exercise authority over any such offense in accordance with this chapter. Any determination to prefer or refer charges shall not act to disqualify the special trial counsel as an accuser.
(B) Known and related offenses.-If a special trial counsel determines that a reported offense is a covered offense, the special trial counsel may also exercise authority over any offense that the special trial counsel determines to be related to the covered offense and any other offense alleged to have been committed by a person alleged to have committed the covered offense.

(3) Dismissal; referral; plea bargains.-Subject to paragraph (5), with respect to charges and specifications alleging any offense over which a special trial counsel exercises authority, a special trial counsel shall have exclusive authority to, in accordance with this chapter-
(A) on behalf of the Government, withdraw or dismiss the charges and specifications or make a motion to withdraw or dismiss the charges and specifications;
(B) refer the charges and specifications for trial by a special or general court-martial;
(C) enter into a plea agreement; and
(D) determine if an authorized rehearing is impracticable.

(4) Binding determination.-The determination of a special trial counsel to refer charges and specifications to a court-martial for trial shall be binding on any applicable convening authority for the referral of such charges and specifications.

(5) Deferral to commander or convening authority.-If a special trial counsel exercises authority over an offense and elects not to prefer charges and specifications for such offense or, with respect to charges and specifications for such offense preferred by a person other than a special trial counsel, elects not to refer such charges and specifications, a commander or convening authority may exercise any of the authorities of such commander or convening authority under this chapter with respect to such offense, except that such commander or convening authority may not refer charges and specifications for a covered offense for trial by special or general court-martial.