On September 9, 2016 NEWS Channel 8 in Connecticut reported that the
U. S. Coast Guard Academy (CGA) was about to court-martial two senior
cadets. This marks the first know court-martial of a Coast Guard cadet
since 2006 when Cadet Webster Smith became the first CGA cadet to face a court-martial. The charges sound remarkably similar.
The
Webster Smith Case was the subject of two books; Conduct Unbecoming an
Officer and Lady, and The case of Cadet Webster Smith, UCGC Vol02, Nr
01-03.
https://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021/ref=asap_bc?ie=UTF8
https://www.amazon.com/Webster-Smith-Court-martial-Justice-Dead-ebook/dp/B01H12LGZW/ref=la_B006WQKFJM_1_8?s=books&ie=UTF8&qid=1474417649&sr=1-8
The AP is reporting that Cadet 1/C Michael Shermot was sentenced to a year in prison for sexual assault and dismissed from the service after being found guilty at a court-martial.
The Coast Guard says Michael Shermot was sentenced Friday, September 16, by a
military judge in Norfolk, Virginia. He was found guilty Thursday, September 15th..
Shermot was a senior at the Coast Guard Academy in New London,
Connecticut, when he was charged and suspended from the school in
December. Authorities have not disclosed details of the sexual assault.
The Day newspaper of New London reports the assault was reported in
West Chester, Pennsylvania, in September of last year. Shermot was
charged with sexual assault by impairment, meaning the victim was not
able to consent. He’s from Shillington, Pennsylvania.
There was a total news blackout for a whole year until last week. This is what was reported.
NEW LONDON, Conn. (WTNH) — A court-martial has been scheduled in
Norfolk, Virginia for two Coast Guard cadets who have been accused of sexual
assault.
Coast Guard Academy spokesperson David Santos tells News 8 that Cadet
Michael Shermot is charged with violation of Article 120 of the Uniform
Code of Military Justice, Sexual Assault. Shermot, a native of
Shillington, Pa. will appear before a military judge on September 12.
Santos says Shermot’s charge stems from an alleged incident in
Westchester, Pa., that occurred sometime between September 4th and 5th
of 2015.
WHO IS MIKE SHERMOT?
He is also the Student Naval Architect and Marine Engineer Vice President. Mike has been wrestling since he was 10 years old and aspires to go to flight school.
Mike says he "loves long walks on the beach, candle lit dinners, and laying down watching shooting stars."
The alleged assault involving Livingstone occurred at the academy in September 2015, according to Santos. His court-martial is scheduled to begin on October 26.
http://wtnh.com/2016/09/09/2-coast-guard-cadets-facing-court-martial-on-sex-assault-allegations/
The cadets are suspended from the corps of cadets following a recommendation by academy Superintendent Rear Adm. James Rendon, while their cases go through the judicial process, according to academy spokesman David Santos.
Michael Shermot is charged with sexual assault by impairment, meaning the alleged victim was unable to consent. His court-martial trial is scheduled to begin on Monday and will be held in Norfolk, Va.
Shermot was suspended from the corps of cadets on Dec. 29, 2015. He was a member of the wrestling team and a native of Shillington, Pa., according to the academy's athletics website.
Shermot faces up to 30 years in prison, dismissal from the Coast Guard and total forfeiture of all pay and allowances.
The alleged assault occurred in Westchester, Pa., sometime between Sept. 4 and 5 of 2015, according to Santos.
The Coast Guard Investigative Service became involved in the case after a civil investigation was started by local police in Westchester.
After concerns were made about Shermot's military status and some of the witnesses involved in the case, the decision was made to have the Coast Guard take over jurisdiction of the case, said Lt. Cmdr. Rob Stiles, a legal instructor at the academy.
Stiles was previously the chief of military justice for the Coast Guard Legal Service Command.
Shermot has been reassigned to the Coast Guard's yard in Baltimore, Md., while he awaits court-martial. He's been assigned work that is comparable to what a lower-grade enlisted member does.
Because the military has much more control over the movements of its members, pretrial confinement is usually not used unless the person is a flight risk or poses an imminent threat, Stiles said.
Anthony Livingstone is charged with sexual assault by lack of consent, extortion and conduct unbecoming of an officer and a gentleman.
His court-martial trial is scheduled to begin Oct. 26, and also will be held in Norfolk.
Livingstone was suspended from the corps on Dec. 1, 2015. He was a member of the football team and a native of Plainfield, N.J., according to the academy's athletics website
Livingstone allegedly assaulted another cadet multiple times at the academy in September 2015, according to Stiles. He also allegedly threatened others in an attempt to prevent them from speaking about the alleged incidents and cooperating with law enforcement.
He faces up to 30 years of confinement, disenrollment and total forfeiture of all pay and allowances for the sexual assault charge; up to three years of confinement, disenrollment and total forfeiture of all pay and allowances for the extortion charge; and up to one year confinement and total forfeiture of all pay and allowances for the unbecoming conduct charge.
Santos said information about the cadets being suspended was not made public until now because "we typically release information on a court-martial prior to the convening date."
Court-martial cases used to occur in New London, but in the last year the Coast Guard has moved most of its prosecutions to Norfolk and Alameda, Calif., where its two largest legal commands are located, in an attempt to create two large concentrated centers of prosecution, Stiles said.
The goal is to develop expert justice practitioners who can more quickly and ably handle prosecutions and sexual assault cases, he said.
In the past prosecutions took place all over the country, which provided challenges from a resource perspective, he said.
( The Day, New London, Conn. | |
http://www.military.com/daily-news/2016/09/12/two-members-coast-guard-academy-face-court-martial.html
It will be interesting to see how they got around the issue of jurisdiction. It appears that the alleged misconduct occurred away from the CGA in the State of Pennsylvania while the accused was on leave or in a liberty status and the alleged victim was a civilian. This would all appear to be beyond the scope of CG jurisdiction. Under the old Fletcher Doctrine there would appear to be no jurisdiction for the CG to proceed against Mike Shermot. I can't wait for more facts to trickle out or to read the record on appeal.
ReplyDeleteChief Judge Fletcher was the Chief Judge of the Court of Military Appeals in the 60s and 70s.
ReplyDeleteThe Uniform Code of Military Justice (UCMJ) specifically requires active duty personnel to follow all applicable rules of military conduct, whether on or off duty, or on or off base. Furlough, a temporary leave of absence from the military, does not change this Rule.
ReplyDeleteThe UCMJ is federal law and as such, is not enforced by civilian law enforcement. The UCMJ is instead enforced by federal officers and federal military courts. This has practical implications for enforcement, especially because local law enforcement may not be aware of certain proscriptions on military life. Further, local police have no direct legal authority for enforcing breaches of the UCMJ.
ReplyDeleteMany crimes under the UCMJ such as murder, rape or robbery, are defined the same way as they are in a civilian court. If a solider commits a crime off-base, and is caught by local law enforcement, the solider will still be under the jurisdiction of the UCMJ. The soldier will be tried for their crime in the military courts.
ReplyDeleteThe military justice system also enforces crimes under the UCMJ that are outside the realm of the civilian courts. However, this does not mean that local law enforcement is required to enforce these UCMJ provisions when a soldier is off-base. For example, the UCMJ prohibits certain adulterous conduct by active military members. This means that if an active military member is caught engaging in adulterous conduct, even if they are off-base, they may be still be subject to military law.
ReplyDeleteIf an off-base soldier engages in adulterous conduct, local law enforcement does not have the responsibility of charging the solider with the breach of the UCMJ. Law enforcement may inform the military that the off-base solider breached the UCMJ, however, they are not obligated to. Further, civilian agencies may have jurisdiction over some off-base conduct that they are not required to inform the military of. Domestic violence incidents are an example of this type of conduct.
The Issue of Personal and Subject Matter Jurisdiction was settled forever by the Supreme Court U.S. Supreme Court
ReplyDeleteSolorio v. United States, 483 U.S. 435 (1987). It was a COAST GUARD Case.
The case presented the question whether the jurisdiction of a court-martial convened pursuant to the UCMJ to try a member of the Armed Forces depends on the "service-connection" of the offense charged.
It does not, and the decision in O'Callahan v. Parker, 395 U. S. 258 (1969) is overrule!
The petitioner Richard Solorio, USCG was on active duty in the 17th CG Dist, Juneau, Ak. He sexually abused two young daughters of fellow Coast Guardsmen.
He engaged in this abuse over a 2-year period until he was transferred by the CG Base Governors Island, NY.
He later committed similar sexual abuse offenses while stationed in New York.
He was charged with 14 specifications alleging indecent liberties, lascivious acts, and indecent assault in violation of U.C.M.J., Art. 134, 10 U.S.C. § 934, 6 specifications alleging assault in violation of Art. 128, 10 U.S.C. § 928, and 1 specification alleging attempted rape in violation of Art. 80, 10 U.S.C. § 880. The specifications alleged to have occurred in Alaska included all of the Article 128 and Article 80 specifications and 7 of the Article 134 specifications.
ReplyDeleteThe CO convened a general court-martial to try Solorio.
There is no "base" or "post" where Coast Guard personnel live and work in Juneau.
The offenses were committed in his privately owned home.
The the fathers of the 10-12-year-old victims were active duty members of the CG assigned to the same command as Solorio.
The NY offenses involved daughters of fellow Coasties; they were committed in Government quarters on the Governors Island.
Solorio moved to dismiss the charges for crimes committed in Alaska on the ground that the court lacked jurisdiction. Ruling that the Alaska offenses were not sufficiently "service-connected" to be tried in the military criminal justice system, the court-martial judge granted the motion to dismiss.
The Government appealed. Ct of Mil Appeals reversed stating that "not every off-base offense against a servicemember's dependent is service-connected," but
"sex offenses against young children . . . have a continuing effect on the victims and their families, and ultimately on the morale of any military unit or organization to which the family member is assigned."
The test for jurisdiction . . . is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.' . . ."
Military jurisdiction has always been based on the "status" of the accused, rather than on the nature of the offense.
Military courts have identified numerous categories of offenses requiring specialized analysis of the service-connection requirement. For example, the courts have highlighted subtle distinctions among offenses committed on a military base, offenses committed off-base, offenses arising from events occurring both on and off a base, and offenses committed on or near the boundaries of a base, and other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile.
DISSENTING OPINION:
ReplyDeleteThe limitations may not, in the view of the majority, be desirable, but that does not mean they do not exist.
The requirement of service-connection recognized in O'Callahan has a legitimate basis in constitutional language, and a solid historical foundation. It should be applied in this case.
Application of the service-connection requirement of O'Callahan, as further elaborated in Relford v. Commandant, U.S. Disciplinary Barracks, 401 U. S. 355 (1971), demonstrates that petitioner's Alaska crimes do not have an adequate service-connection to support the exercise of court-martial jurisdiction. Petitioner's offenses did not detract from the performance of his military duties. He committed these crimes while properly absent from his unit, and there was no connection between his assigned duties and his crimes. Nor did petitioner's crimes threaten people or areas under military control. The crimes were committed in petitioner's private home in the civilian community in Juneau, where there is not even a base for Coast Guard personnel. Petitioner's acts were not likely to go unpunished; the court-martial judge determined that the offenses were of a type traditionally prosecuted by civilian courts, that such courts were available, and that, while the Alaska courts had deferred prosecution in light of the court-martial proceeding, the State had not declined to prosecute the offenses. Nor did the crimes implicate any authority stemming from the war power; they were committed within the territorial United States while the Nation was at peace.
Moreover, the crimes caused no measurable interference with military relationships. Though the victims were dependents of Coast Guard members, the court-martial judge found that there was only de minimis military interaction between petitioner and the fathers of the victims, and that the relationships between petitioner and the families of the victims "were founded primarily upon the ages and activities of the children, and additionally upon common sporting interests, common spousal interest, and employment and neighborly relationships," rather than the connection of petitioner and the families through the Coast Guard. Because the crimes did not take place in an area within military control or have any effect on petitioner's military duties, their commission posed no challenge to the maintenance of order in the local command. The military judge found that the Government had not demonstrated any impact of the offenses on "morale, discipline, [or] the reputation or the integrity of the Coast Guard in Juneau." The only connection between the military and the offenses at issue was the fact that the victims were military dependents. But the military judge found explicitly that the military association of petitioner and the victims' fathers did not facilitate petitioner's crimes, and that "[t]he impact apparent in this case, that is, on the parents and the victims themselves, is no different than that which would be produced by civilian perpetrator."
ReplyDelete--