CAAFlog sources report

6/29/2024

Update: https://www.tpr.org/military-veterans-issues/2024-06-29/jury-of-generals-finds-two-star-air-force-general-not-guilty-of-sex-assault-in-historic-court-martial

$60K fine, two months restriction, and a fine.

Maj. Gen. Phillip Stewart has been acquitted by a panel of members.

William Cassara

6/30/2024 08:56:17

While reasonable minds may differ, I thought the sentence was appropriate. He has paid dearly for his abhorrent behavior. A dismissal would have been grossly disproportionate IMHO.

J.M.

6/30/2024 12:07:02

MR. Cassara, I respectfully disagree. And I'm not talking about the charges he was (rightfully, IMO) acquitted off. I've seen careers ruined, and retirement and other benefits lost for lower ranking individuals in similar circumstances. It's appalling to continuously see senior officers walk away with fines and slaps on the wrists for something like an adultery 134 charge when the same officers have almost certainly signed off a worse punishment for the same charge to a subordinate and ruining their lives.

In 2013, I had a Soldier who was in the process of getting divorced start dating another Soldier. She was sexually assaulted by a senior NCO (the NCO tried to extort sexual acts from her in exchange for not reporting that she was dating a married man). The BF came to me and admitted to adultery in order to report what happened. He was Art 15 for adultery and chaptered. How can leaders look at something like that, then look at half months pay for 6 months fine and 2 months restriction to base for a General who slept with a subordinate and think the system is unbiased?

Which wasn't really noticed or commented on 10 or 15 years ago. This weekend, I'm in 3 different chat rooms and forums with 100+ military members each (various discords and a closed military vet only forum) and everyone is paying attention to what happened and discussing people they knew who weren't so lucky as to walk away with a fine and no loss of rank or benefits for situations that weren't tainted by accusations of sexual assault.

It's time for the face-saving adultery 134 charges in weak and/or acquitted sex assault cases to go away and it's time to seriously address and fix the disparate treatment punishment between senior and junior ranks for similar misconduct.

Nathan Freeburg

6/30/2024 12:21:57

J.M.,

FWIW, what you are describing from 2013 is unlikely to happen in 2024 (IMHO).
It's hard to compare because Stewart will very likely retire as O-7 not an O-8, meaning his conduct lost him hundreds of thousands of dollars. The reality of the military retirement system is that you simply can't compare penalties for senior vs junior service members (whether officers or enlisted).

William Cassara

6/30/2024 12:52:50

I represented a 20 year AF Captain years ago with nearly identical facts. His punishment was almost identical. Fine, forfeitures, no dismissal, and retired at a lower rank.

Philip Cave link

6/30/2024 13:33:47

J.M. I disagree that the "discrepancy" you point out has only recently been noticed. For as long as I have practiced, there have been internal and public comments on that issue. Brother Bill is not alone, we've all had similar situations over the years. Nathan correctly points out the significant monetary loss here and the likelihood that the RGRB will recommend at least a one-grade reduction for retirement. If he were in the Navy, they might convene a BOI for the grade determination and, in the process, proffer a retirement with a General characterization of service.

The reports do not say if there was a confinement kicker for nonpayment of the fine.??

As to your NCO, I agree that action leaves a bad taste. Perhaps the current rules, Para. 99(c)(1)(h) ought to be amended to add "separated" as indicative of "pending legal dissolution." Most states require a period of separation before filing for divorce, and as your NCO scenario suggests, the separation state leaves an opportunity for abusive spouses to extort or pressure on the to be ex. And in your NCO scenario, would you in the future come forward in support of a victim of sexual abuse for fear you will be disciplined in the process? I'm not sure the expanded "Ralston" analysis in para. 99, carries out its intended purpose to limit these types of prosecutions/discipline. (The Ralston "defense" or "analysis" comes from the time the Services were adjusting after Gen. Ralston (AF) was nominated to be CJCS, had admitted to an affair 10 years before, and he and his wife had gotten over it. His nomination was withdrawn. There was a lot of back and forth in the JSC about the criteria for prosecution, which ended up in the MCM then, with the Marines being the last long holdout on an all-or-nothing approach.)

Judge Stoffel is a careful judge, so I agree with Brother Bill about the sentence here. However, I'd be interested in knowing how much of the acquitted conduct TC argued on sentencing and whether there might be an appellate issue on that.

Richard Stevens link

7/2/2024 08:43:37

In my humble opinion, there are many potential talking points from this case, that the press doesn't seem interested in, nor do those who seem to always be asked to publicly comment on these cases in the press. First, that dubious sexual assault allegations occur in the military. This happens with disturbing frequency. It just happend to a general officer this time. Second, that a military judge, acting as an Article 32 PHO, could recommend not proceeding to trial with that dubious claim, and that recommendation is ignored. This happens with disturbing frequency as well. Then, when a sexual assault conviction is not secured, or a sentence to other misconduct is handed down, the decisons were wrong and the system has failed. There should have been a conviction. The sentence was too light. The complainant has been denied justice. The military court members have failed. The military judge who sentenced the accused has failed. The system has failed. It's very discouraging that this is how the topic is approached by the press. It is very discouraging that this is how the topic is approached by some talking heads who give quotes to the press in these cases. We were not in the Article 32 hearing. A military judge was, acting as the PHO, and based his recommendation on the evidence presented to him. We were not in the trial, the military court members and military judge were. They based their decisions on the evidence and testimony presented to them, and judging the credibility and reliability of both. As long as the press publishes slanted stories, and quotes biased sources, the false narratives about the system continue to be pushed and ill-informed politicians will continue to mess with the system to try to "fix" what is "wrong." Acquittals are not a sign that the system has failed. Sentences that don't send the harsh message that you want to be sent does not mean the system has failed. I would love for the National Institute of Military Justice, as an organization, to issue a public statement that they respect the verdict and sentence in this case, instead of some of their members being quoted as suggesting that, once again, the military justice system has failed.

Philip Cave link

7/2/2024 15:24:36

Rich (writing for myself):

1. NIMJ, and very recently CAAFLog has been "accused" of bias in favor of the defense. That there is not so much posting in favor of the Government that's not our problem, it's theirs. We've sought and encouraged any flavor of posting or comment and have posted unsolicited posts that "favor" the Government's position.

2. For those of us at NIMJ who do talk to the media, it is done in our PERSONAL capacity, even if there is no disclaimer to that effect.

3. In the Stewart case, POD has publicly stated that the case should not have been prosecuted.

4. As to your comments, you forgot something. It's often the defense's fault that there is an acquittal. A common refrain is that the defense counsel must have engaged in victim-blaming, etc., etc., etc. To cite Lewis Carroll, this is Jabberwocky. [https://en.wikipedia.org/wiki/Jabberwocky] Or maybe a chapter from Alice [https://en.wikipedia.org/wiki/Knave_of_Hearts_(Alice%27s_Adventures_in_Wonderland)] I agree there may be counsel out there doing that and shouldn't. But relevant cross-examination supported by facts or reasonable inference, unobjected to either by the TC or sua sponte by the MJ is not victim blaming. A problem with the media is the willlingess to cherry-pick and turn it into a headline. Us practitioners currently litigating such cases know that.I say to them, read the RECORD OF TRIAL before you accuse.

5. On the punishment issue there's a right and wrong. What concerned me most about the offenses to which Stewart pled guilty was being at the controls of an aircraft with people, equipment, etc., a safety issue because not just of that flight but the potential to have other pilots skirt the bottle-throttle rule because, well, they had a bad example.

6. Different strokes, seemingly so.I'll give you an example.

Client and another are under investigation for adultery and fraternization. Both effectively confess to having consensual sex, etc. The other party is then told they might face a summary court-martial. Guess what. The client is now pending court-martial for rape, adultery, and fraternization. What I knew, but the prosecution didn't (because of the typical biased investigation and failure to investigate by TC) were: (1) right after the sex, the other party called a best friend and bragged about the sex and would do it again, (2) that they did do it again several nights later, and (3) I had receipts (figuratively and literally) from the on-base Inn. The client was found NG on the rape but obviously G on the frat and adultery. The client got a BCD and SIX MONTHS. The liar got promoted, retained, a new assignment, and the pending disciplinary action went away. I doubt a senior officer would have received that punishment for the same conduct.

Richard Stevens link

7/2/2024 15:47:37

Phil,

Copy all and understand. It just frustrates me to no end when I read comments in the press by NIMJ Board Members who push these narratives, and are always willing to give a hot quote in that direction whenever the press calls. Even if given in their personal capacities, they know how these words impact politicians and the public. And, frankly, they should know how misguided these comments are. In this case, we get from one: “missed opportunity to send a message that general officers are held to a higher standard.” We get from the other: "meager...rank hypocrisy...woefully light sentence also demonstrates a grave procedural defect in the military justice system — the lack of independent judges who, under their robes, are military officers concerned about their careers and as supplicant to senior rank as everyone else. I’m disgusted.” Are you kidding me?! To level these types of public claims against a judge who many of us know, have practiced in front of, and bears absolutely no resemblance to those comments is bad enough. But, more generally, to impugn the integrity of sentencing in the military justice system...especially when they have the ear of those set to continue to destroy the fairness of the military justice system, like Sen. Gillibrand...those are the types of comments that rally such a misguided and ill-informed cause and spur more change to the ever-changing system. It's irresponsible and it's inaccurate. If member sentencing doesn't work, and judge alone sentencing doesn't work, what precisely should we do? Have some new system that passes the criteria of Protect Our Defenders and their ilk? I'll get off my soap box for now...

Franklin Rosenblatt

7/2/2024 16:02:22

Hi Rich! Phil has already said what I would have said. I always value your thoughts on NIMJ and what we can be doing. There are no plans to take up an official NIMJ position on the result in this case. Hopefully you'll keep putting your ideas out into public spaces as I know that you have much to offer when it comes to the public's understanding of military justice.

Richard Stevens link

7/2/2024 16:06:40

Frank, I completely understand. I appreciate you. Thanks.

Fisch

7/24/2024 16:22:30

Sad to see no significant changes have occurred over the past 6 years. Happy to see familiar names still defending those who defend America.

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