Found guilty, he ran; now ex-soldier is on last-ditch appeal
Military high court petitioned to reconsider former Green Beret’s sex assault conviction
By NANCY MONTGOMERY | STARS AND STRIPES Published: December 22, 2012
This story has been corrected.
HEIDELBERG, Germany — He was a Green Beret, a husband and father when in 2009 a military jury convicted him of a sadistic sexual assault on a woman he’d picked up at a Stuttgart-area disco and sentenced him to eight years in prison.
The next year, after an unusual post-trial hearing, Sgt. 1st Class Kelly Stewart was given a substantial sentence reduction. The convening authority in the case, Brig. Gen. Steven Salazar, reduced Stewart’s sentence to three years. Stewart ended up serving 19 months.
His quest through the courts to have his conviction overturned, and with it his status as a registered sex offender, has continued far longer.
Now his case appears to be coming to an end. The Army Court of Appeals in July upheld Stewart’s conviction and sentence and denied his petition for a new trial.
Stewart’s appellate attorney, Bill Cassara, then asked the Court of Appeals for the Armed Forces, the military’s highest court, to review the case. That petition was denied last month.
Now Cassara has petitioned CAAF to reconsider its decision, asserting, for the first time, that Stewart’s trial defense lawyer was incompetent.
David Court, Stewart’s trial defense lawyer, declined to comment.
An incompetent lawyer, or “ineffective assistance of counsel,” is often alleged in appeals, yet rarely succeeds as grounds for a new trial.
Appellate courts rarely decide to hear cases they’ve already declined. And the Army appellate court is empowered to overturn convictions on a wide variety of legal and factual grounds, and could have done so in Stewart’s case.
“It’s the bottom of the ninth and I’ve got two outs,” Cassara said. “I believe this guy’s innocent.”
Cassara said he’s currently working free of charge on Stewart’s case.
Stewart’s guilt or innocence has been debated for some time despite his conviction by the jury, composed of 10 male soldiers who heard the case, watched both the accuser and Stewart testify and decided Stewart was lying about what happened the night of Aug. 22, 2008.
He said, she said
According to both Stewart and his accuser, the two met at a disco, talked, danced, left the club and ended up at his hotel room, where he was staying as he in-processed for his new assignment to a unit that trained fellow Special Forces soldiers at the International Special Training Center in Pfullendorf.
Stewart, 37, testified that the two had consensual sex.
The woman, 28, testified that Stewart had brutalized her for hours, striking her after he ordered her to undress, biting her, pinning her to the bed and repeatedly forcibly sodomizing her. When she asked to leave, she said, he grabbed her by the neck, pushed her to her knees and again sodomized her and did not allow her to leave until the next day.
She reported the attack two months later.
“There are a lot of cases where I have no idea who’s lying,” said Daniel Lorch, the German police detective who investigated the case. “But in this case, the more we investigated, the longer it went on, the clearer it became. I was sure she told the truth. I had contact with the subject (Stewart) and the victim — multiple interviews,” he said. “My personal opinion is that he was guilty.”
People who saw the woman the morning she left the hotel provided corroborating trial testimony, Lorch said, including a taxi driver.
“He described, very detailed, very clearly, her physical damage,” Lorch said. “He was sure something very bad had happened to this woman.”
After his 2009 conviction — before he was sentenced — Stewart, who was not in physical custody, disappeared from his on-base Vilseck hotel, got in his rental car and drove away. He was at large for 48 hours — attempting suicide by poison, his father, John Stewart, told reporters — before turning himself in.
That a convicted sex offender could walk away at will created tension between the Army and German officials.
“A lot of guys got really angry. They couldn’t believe it,” Lorch said.
Three months later, defense attorney Court said he had received new evidence that the woman had lied in her testimony. Salazar ordered a hearing.
New evidence presented
The evidence consisted primarily of a former friend who had said nothing previously, but now told the judge that the woman had told her that she’d had “great sex” with Stewart and that she believed that the woman had been diagnosed with a personality disorder.
The former friend also said that the woman had lied when she told the jury that the assault had so traumatized her that she now avoided men; the former friend and another witness said the woman had since had sex with other men.
The judge, who also heard again from the victim, was not convinced. He issued a ruling that the victim had told the truth. Had the defense motioned for a new trial on the same evidence, the judge ruled, he would have denied it.
Salazar came to a different conclusion. He struck one of Stewart’s convictions, for kidnapping; upgraded his discharge from dishonorable to bad conduct; and reduced his sentence to three years.
Convening authorities have unfettered clemency discretion. Still, it was unusual.
“I gave it considerable thought and review,” said Salazar, now retired from the Army and working for DynCorp International. “I’m secure in the decision I made.”
He declined to discuss his reasoning, but when asked if he’d countermanded a jury’s judgment that Stewart was a violent sex offender, Salazar demurred.
“I didn’t see it that way,” he said.
Cassara’s petition to CAAF does not involve the former friend’s testimony. “I had already said everything there was to say with respect to the accuser’s friend,” he said in an email, referring to the previous appeal.
The Army appellate court, like the trial judge, also had not been convinced by the evidence from the former friend in its review. That information “would not have produced a substantially more favorable result for appellant,” the court found.
Cassara had also argued to the Army appellate court that the trial judge had erred in rulings dealing with the mental health records of the woman. The records were from years before she’d encountered Stewart, when she was a patient at a mental health facility for four months in 2004 and 2005.
German officials had declined to release the records — without a “concrete claim of evidence and basis in fact “ of their relevancy — declaring them impermissible on privacy grounds.
Mental health records are usually admissible at trial only if, once subpoenaed, a judge decides they are relevant to a victim’s ability to recall events or to potentially fabricate a motive.
The Army appellate court said Stewart’s defense had never demonstrated either to German officials or the military judge that the records contained relevant information. It also said it seemed clear that it had been “a conscious strategic decision not to fully litigate the issue” by Court.
Cassara’s new petition asserts that Court was incompetent for failing to do more to obtain the records — or, if they were not produced, to persuade the judge that their relevancy was so key to a fair trial that he should dismiss the charges against Stewart.
Cassara said he expects the court will decide whether to reconsider in a few weeks. If the court declines, the process is at an end.
“There is no appeal if CAAF refuses to hear the case,” he said.
A father believes
Since he was released from prison, Stewart’s life has been difficult, Cassara said. For a while, he lived in a trailer without plumbing on an uncle’s farm, according to a blog Stewart’s father maintains as part of a tireless effort to exonerate his son.
Stewart has since moved in with his father in Florida, Cassara said.
His wife, an Army medic who sat silently throughout his trial, according to Lorch, has left him, Cassara said.
Stewart could not be reached for comment.
John Stewart, a retired airman and VFW chaplain, said he believes his son is innocent and is the victim of a “biased” military justice system.
Stewart’s father and others, including the author of a book claiming Stewart was wrongly convicted, have pressed members of Congress, military leaders and media representatives to “investigate” the case.