Detention policy questioned after soldier’s escape
Stars and Stripes August 28, 2009
Army officials are investigating how a Special Forces soldier was able to simply disappear last week, a few hours after his conviction for the kidnapping and sexual assault of a German woman.
Kelly A. Stewart was not guarded, and legal experts point to a gray area in the U.S. Military Manual for Courts-Martial that leaves the securing of a convicted soldier to a judge’s discretion. It also requires that the government specifically demand the soldier be detained before sentencing.
After his conviction last Wednesday, Stewart was sent back to his on-post hotel room, which he was sharing with a fellow Special Forces soldier, and told to return the next morning for sentencing. Sometime in the middle of the night, however, Stewart got out of bed, left the room, hopped in a rental car and drove away, according to court testimony.
Stewart surrendered to the military police less than 48 hours later, but not before he poisoned himself, according to his father, John. Stewart was treated at Walter Reed Army Medical Center for that, and on Thursday was transferred to prison facilities at Marine Corps Base Quantico.
John Stewart questioned why the Army did not do more to monitor his son; the German police had indicated that Kelly Stewart, who was a sergeant first class at the time of his conviction, might be suicidal.
"I don’t know how they could let him get away knowing that he was [suicidal]," John Stewart said.
Stewart’s case is one of several in recent years in which a servicemember was able to either escape or, in one case, commit suicide soon after a conviction.
Under current courts-martial regulations, the unit of the soldier on trial, in coordination with prosecutors, ensures that the accused is present in court at the proper time, is in proper uniform and is accounted for at all times during and after the trial, according to a U.S. Army Europe statement.
Stewart was not being escorted or guarded at the time he fled because he had yet to be sentenced, according to the 7th Army Joint Multinational Training Command. "Escorts normally begin their formal duties of physically controlling the accused Soldier only after sentencing is complete," according to an e-mail from JMTC.
It is the responsibility of the government to make sure the unit knows what its obligations are in a court-martial, said civilian attorney David Court, who represented Stewart in the case and has defended thousands of U.S. troops in courts-martial in Europe over the last 30 years.
"Is someone criminally responsible? I doubt it," Court said. "Maybe someone was derelict in their duty. I’m not sure."
USAREUR officials said the incident is under investigation and "appropriate action" will be taken when the investigation concludes. That investigation will determine whether standard operating procedures need to be amended, JMTC officials say.
Walter Cox, a former chief justice of the U.S. Court of Appeals for the Armed Forces and head of the 2009 Commission on Military Justice, said the Manual for Courts-Martial does not require that a convicted soldier be secured, but it can be done. The government, he said, can ask a judge to confine convicted soldiers it deems to be flight risks, who might commit further crimes, or who seem likely to hurt themselves.
"It’s a discretionary decision," Cox said.
Defense lawyers have argued that a situation in which MPs were ordered to watch over a convicted troop awaiting sentencing could possibly be construed as subjecting the convict to unjust pretrial punishment.
"Even once he’s convicted, he could get no sentence," David Court said. "Is that pretrial punishment? I don’t know if they would consider that pretrial punishment."
No one who is restrained pending trial may be subjected to punishment or penalty for the offense that is the basis for that restraint, according to Rule 304 in the U.S. Military Manual for Courts-Martial.
But pretrial restraint is not akin to punishment, Cox said. Whether a soldier is secured, and how, can be debated among opposing lawyers and the judge, and then the judge has the ultimate decision, Cox said. Convicted soldiers can be required to turn over their passports, check in with MPs or be placed in the confinement facility in Mannheim.
"What you can’t do," Cox said, "is have [restraint] so onerous that it amounts to punishment. It can’t be punitive."
Phil Cave, a retired Navy judge advocate now in private practice, believes that the fast process of convicting and then sentencing soldiers is partly to blame for the recent spate of escapes.
"You’re guilty and then you’re sentenced in one gulp," Cave said. "They have this actual shock. And it’s such an emotional situation that they panic."
In civilian courts, the conviction and sentencing phases of a trial are separated, which allows those who are convicted a respite while they are out on bond.
"There is time to decompress," Cave said.
Cox said he has heard others in the military justice system make similar arguments about giving soldiers time between conviction and sentencing, and he has even seen commanders give senior enlisted officers a few weeks before sending them to prison. But Cave and Cox acknowledged that the military judicial system lacks the necessary infrastructure to allow soldiers such a reprieve.
Cox said the issue of how soldiers facing courts-martial are guarded is not being looked at in the current commission, which will be completed soon, and he has not heard of any other military judicial boards looking into it.
"But I think it’s a very interesting issue," he said, "that somebody needs to give a serious thought to."
In civilian federal court, pre-trial and pre-sentencing confinement also is up to the discretion of the judge, said Christian Capece, an assistant federal defender in Charleston, W.Va., and a former U.S. Marine Corps defense attorney.
In the rare instance where a defendant is out on bond pending trial for a violent felony, it’s likely the judge would revoke that bond once the person pleads guilty or is convicted, Capece said, because of the likelihood that person may flee or pose a risk to the community.
"The person has now been proven in a court of law they’re dangerous, that they are a violent person," Capece said, and could be facing many years in prison. "Most judges would say ‘I’m going to revoke your bond until the sentencing hearing.’ "
Examples from courts-martial during recent years show lax oversight of accused and/or convicted troops.
In May, Army Sgt. Cuauhtemoc "Temo" Gonzalez Jr. apparently shot and killed himself outside U.S. Forces Korea headquarters at Yongsan Garrison after he had just been sentenced in connection with an improper relationship with a superior. Court-martial security procedures at Yongsan were being reviewed as a result of Gonzalez’s death, Army officials said.
In February 2008, Air Force Maj. Mark Seldes was deemed missing after failing to appear for the sentencing phase of his court-martial at Kunsan Air Base, South Korea. Seldes, already convicted of rape, was found on base the following day and arrested.
In April 2000, Army Spc. Christopher McCarthy, initially detained by the military, fled military custody in Seoul, South Korea, hours before his court-martial for murder was to begin. South Korean police arrested McCarthy eight hours later and handed him over to U.S. military authorities.
Stars and Stripes reporter Jennifer Svan contributed to this story.