TIMED OUT Sentence in Smith case far exceeds norm
Stars and Stripes November 10, 2010
HEIDELBERG, Germany — The sentence for an Air Force staff sergeant who raped three young girls he baby-sat in the Kaiserslautern community far exceeded those historically handed down for such crimes in military court, legal experts say.
Staff Sgt. Joshua Adam Smith, 27, on Friday was sentenced at court-martial to life in prison without possibility of parole.
His crimes were heinous; he ruthlessly sought out especially vulnerable victims by offering baby-sitting services online. Smith pleaded guilty to 18 counts of sexual abuse of the girls, ages 3, 4, and 7, including penetration with his penis, finger and a marker. He took photos and videos of the abuse, and also pleaded guilty to two counts of manufacturing child pornography, according to charging documents.
Military judge Col. Dawn Eflein announced her sentence — the maximum available, and what prosecutors had recommended — without commentary or explanation, as is always the case in courts-martial.
“I believe it was a harsh sentence,” said David Court, Smith’s defense lawyer, who had asked the judge for a sentence equal to 30 or 40 years. “I’m not going to say a sitting judge was wrong.”
Michelle Lindo McCluer, executive director of the National Institute of Military Justice, agreed that the sentence was harsh — and unusual.
“This is certainly not a type of sentence I’ve seen before in this kind of case,” she said.
Definitive military conviction and sentencing statistics are not readily available. But Smith’s case, experts said, presented circumstances for a harsh sentence.
Smith recruited victims online as a baby sitter; posed as his own female reference; used his victims to make child pornography, possibly to distribute; and violated the most innocent victims, according to court testimony.
“All of the biggest aggravating red flags in the modern concern about child exploitation and child sex offenses are present,” said Douglas Berman, an Ohio State University law professor and appellate lawyer.
Certainly the young age of the girls — “here we’ve got babies almost,” Lindo McCluer said — was a factor. And perhaps the judge was convinced Smith was a bad gamble for rehabilitation. But sentences are shaped long before the trial even starts in all courts, lawyers say, by prosecutors and the defense attorneys in negotiations and plea deals. Those deals, which in the military must also be agreed to by the convening authority, set out what, exactly, is to be charged, the number of counts and what the sentence will be.
“So much of the disparity in sentencing is driven not so much by what the judges do,” said Douglas Berman, an Ohio State law professor and appellate lawyer
Defendants unable or unwilling to reach an agreement with prosecutors usually fare worse in their outcomes, he said.
Smith did not have a plea arrangement. Court declined to say why without his client’s consent.
The law for all military branches is the Uniform Code of Military Justice; all branches use the Manual for Courts-Martial. Military trials — evidence rules and procedures are identical; sentences do not vary among the services or regions or commands.
A sampling of USAREUR murder and rape case outcomes from the Army from 1995 to early 2009, for example, shows one sentence of life without parole. Staff Sgt. Frank J. Ronghi, 36, in 2000 was given the sentence after pleading guilty to sodomizing and murdering an 11-year-old girl while on peacekeeping duties in Kosovo.
In an egregious child rape case, Staff Sgt. Jason L. Lewis, a Mannheim military police officer, was sentenced to 45 years. Lewis was convicted in 2004 of raping a girl from the time she was 7, repeatedly over three years, arranging for two other men to rape her and distributing photos of her over the Internet.
According to David Finkelhor, a sociologist at the University of New Hampshire who has studied child victimization and offenders for decades, sentencing generally has to do with perceived harm to victims, harm to the community, likelihood of re-offense, beliefs about deterrence and incapacitation, and, in the civilian system, politics: Legislators want to be tough on crime.
Child sex abuse causes revulsion in most people, and can be punished far more severely than child homicides.
“It’s a feature of our psychology,” said Finkelhor. “The combination of sex and children — it is a very morally troubling issue.”
Sex abuse cases also cause harm to the community, he said — a loss of trust, an injection of fear. “I think a sentence reflects not just the harm to the child but the outrage of the community,” he said. “I think that’s a fair thing to reflect.”
Smith’s case isn’t over yet.
In military trials, the judge or jury does not have the last word. The convening authority — in this case 3rd Air Force commander, Lt. Gen. Frank Gorenc — reviews the trial record, judgment and sentence for approval. Included are recommendations by staff judge advocates; usually, clemency requests from the defense; and sometimes prosecutors’ responses to defense memorandum. The process usually takes about 40 days.
Stars and Stripes reporters Megan McCloskey and Kevin Baron contributed to this story.