SFC Kelly A. Stewart (Army) and CMSgt. John Stewart (USAF Ret.)
Below is the long version of my explanation that I wrote down and published in November 2011, one month after Three Days In August was released. It’s the explanation I still offer today:
On March 30, 2010, I came across something about the case of SFC Stewart, a Green Beret who had been convicted and sentenced to eight years in prison after being accused of raping and kidnapping a German woman.
Though I cannot recall or locate whatever it was exactly that made me aware of SFC Stewart’s case, I did keep records of what transpired from that day forward. It began with an email to the Soldier’s father, CMSgt. John Stewart (USAF Ret.), in which I wrote two words: Call me.
During the days and weeks that followed, Chief Stewart forwarded everything he could about the case. In addition, he helped me secure an authenticated copy of the Record of Trial and encouraged me to read it. If, after reading the complete ROT, I didn’t think something had gone horribly wrong with SFC Stewart’s case, Chief Stewart said he would respect my decision.
It didn’t take long, however, for me to conclude that SFC Stewart had indeed become a victim of military justice gone awry.
During the next 12 months, I gathered other documentation, discussed the case with others with close ties to the case and wrote as much as I could write based upon the case records. Then my work on the book took a completely different turn.
On March 31, 2011, SFC Stewart was released from the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan., the result of having his sentence reduced to three years and being released on probation after serving 19 months behind bars.
Soon after his release, I was talking with him by phone.
Before it was over, I had interviewed him multiple times, spending more than a dozen hours on the phone and exchanging countless emails — as the only writer, reporter or media person with whom he agreed to discuss the case.
The rest is history.
Based on extensive interviews and offering never-before-published details about the case, Three Days In Augustpaints a portrait of military justice gone awry that’s certain to make your blood boil.
To read about other military justice cases I’ve followed, click here.
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Though I’ve written about many military justice cases involving men fighting false sexual assault allegations, I think the words of those directly impacted by the false allegations and military trials that follow carry more weight. Therefore, I’m sharing the content of a message I received today from a woman who went through the nightmare of her military husband’s court-martial and conviction. For reasons that should become obvious to you as you read her words, the names and personal information have been changed to protect their identities.
Shown above with Bob McCarty are (clockwise from upper left): MSgt. Mike Silva, Air Force; Maj. Christian “Kit” Martin, Army; Sgt. 1st Class Kelly Stewart, Army; and Sgt. Todd Knight, Army. These military men represent but a handful of the men who’ve been caught up in the Pentagon’s sexual assault witch hunt.
Hello, Mr. McCarty:
I know you receive messages from many families, so I am not sure if you remember me, but we communicated several years ago about my husband, Phil. Phil and I started dating while he was going through a divorce. He was (wrongfully) convicted the following year when his now ex-wife accused him of forcible sodomy after he and I started dating. Although this tragedy has made things very hard at times, we have had the happiest relationship and marriage for nearly eight years now. Anyhow, I read the article about Todd Knight and the letter from his mother, and it reminded me to reach out to you.
Although it has been very hard, Phil and I have moved on, as much as one can move on, from this tragedy. Much like Todd Knight’s mother, I am amazed at how my husband manages to keep pressing forward. We spent upwards of $40,000 fighting for custody of his children. Unfortunately, every time we would prevail and custody would be awarded to him, his ex-wife would take off in hiding long enough to have jurisdiction moved to another state. We could not financially afford to continue the fight and his ex-wife was starting to punish the kids for wanting to see him, so he made the very difficult decision to stop fighting in the hope that by doing so his ex-wife would stop punishing his daughters. He put his faith in God that he will watch over them and reunite them again someday. We have not seen the kids in over 5 years, sadly. His ex-wife has since accused yet another military member, her now-estranged second husband, of abuse. He is her 3rd service member victim, and we pray that all the children involved (Phil’s and her second husband’s) will somehow make it through this with minimal damage, or at the very least, that some day we can help them through any damage they have suffered as a result of this terrible situation. In light of this new development, we gave it a great deal of thought to restart our fight again. We have been even looking at hiring the appeals lawyers Dallas can offer us, maybe even search for a local law firm. Still, when faced with the possibility of his ex-wife pulling the same tricks, and thinking about the amount of money we spent fighting her before, we soon lost our nerve once again.
The most troubling and heart breaking part of this is hearing so many people tell us that they cannot believe he was convicted. Even the sexual assault therapist he was ordered to meet with during confinement and the law enforcement officers and prosecutor in charge of enforcing his offender registration are in disbelief that he was convicted. His case was literally “he said, she said,” and she was accusing him of assault years after she claimed it occurred (and only after he had started dating someone new, but by this point we’d known she was trying to date and featured herself on some local Nudist Dating services online), but still he was convicted nonetheless.
On one hand, it makes him feel good to hear that people who are actually trained and experienced with these sort of matters truly believe in his innocence. On the other hand, it is a hard thing to swallow because, even in spite of that, there is nothing anyone can do about it.
Having this weighing over his head and losing out a on a relationship with his children are things that will always weigh heavy on his heart (their birthdays, father’s day and holidays are still very solemn for him), but we have moved on as much as one can from this.
Phil finally has a great job — a career he loves. We have a beautiful home and are starting a family. I suppose that is my intention of telling you all this — to let other families, other service members effected in this way know that they should continue to fight, but in any case, there is hope at rebuilding life after this kind tragedy. If ever we can provide support or a kind ear to other service members or families effected in this way, please feel free to tell them they may contact us.
Very best, Name withheld
The story told in the letter above bears many striking similarities to other military justice cases I’ve followed during the four years since the release of Three Days In August, a nonfiction book in which I chronicle the life story and wrongful conviction of a highly-decorated combat veteran and elite Green Beret on bogus sexual assault allegations.
Stay tuned for more details about this story as I’m working to obtain copies of the Record of Trial and other documents related to this case. Inexplicably, according to the couple involved, the military branch in which he served said the ROT was “classified” and refused to give him a copy of it upon request. As incredible as that seems, nothing surprises me anymore when it’s related to the Pentagon’s sexual assault witch hunt.
UPDATE 11/6/2015 at Noon Central: Though I’ve promised not to reveal the names of the players involved in the case outlined above, I located the ex-wife/accuser of “Phil” and discovered she maintains a presence on several social media platforms and has more than one pornographic web site as part of a business that uses sex-related words and imagery as its primary products. How the military justice system sided with her is beyond comprehension!
On Day Two of the Army’s court-martial of one of it’s finest Green Berets, a prosecution attorney cited a suspect source as he questioned Sgt. 1st Class Kelly A. Stewart about his training. See if you can spot the source in the excerpt from the Record of Trial that appears below:
Click on image above to order book.
TC: At the SERE course you’re taught how to resist violent captors, is that correct? Stewart: Again, sir, unless I’m authorized by the SOCEUR Public Affairs Officer, I can’t discuss the training that I received at the SERE-level C School.
TC: You’re taught how to resist torture? Stewart: Again, sir–
TC: We’re going to go through this, so, that’s fine– Stewart: No, again, sir, I don’t know what I’m authorized to discuss with you because I’m not the releasing authority of my training.
TC: I got this off of Wikipedia.com.
[Legend:SERE = Survive, Evade, Resist and Escape; TC = Trial Counsel; SOCEUR = Special Operations Command Europe; CDC = Civilian Defense Counsel; and MJ = Military Judge.]
That’s right! He said, “I got this off of Wikipedia.” Unbelievable!
How would you feel if you were found guilty by a court-martial panel (i.e., the military equivalent of a jury) that sided with a prosecutor who cited Wikipedia.com as a source during your cross-examination?
FYI: I shared the piece above for the first time four years ago today. Since then, I’ve covered many other military justice cases. I hope you’ll read and share this story as well as the others I’ve written and published. Thanks in advance!
Three years ago this month, I was contacted for the first time by Teresa McQueen, a woman whose son, Todd Knight — then a 25-year-old Army Sergeant stationed in Germany — had been accused of raping a 19-year-old woman. Today, I offer a long-overdue update about that case and issue a call to action.
This photo shows Todd Knight in his Army uniform prior to being accused of rape and convicted on a lesser charge.
First, a review of some case details is in order.
On March 7, 2013, I published an article that included snippets about several cases involving military men accused of sex crimes. Below is the text of the portion of the aforementioned article that pertained to Knight’s case:
While stationed in Germany, Army Sergeant Todd Knight befriended a young German woman while out with friends the night of Jan. 27, 2012. At some point during the evening, he and three other Soldiers – one of whom he considered a friend – accompanied the woman and one of her friends to the home where the sister of one of the women – but not the accuser – lived.
What actually happened at the home, however, remains a matter of much debate as conflicting stories were given to German authorities. Two things, however, stand without dispute: Sergeant Knight was arrested by German authorities the next day, accused of rape, and those same German authorities eventually decided not to pursue the case.
U.S. military officials, on the other hand, decided to move forward with charges of their own despite the fact that the alleged victim testified during the Article 32 hearing that she couldn’t remember what had happened that night and despite the aforementioned conflicting statements.
On Dec. 18, 2012, Sergeant Knight was found guilty of sexual assault, sentenced to one year behind bars and busted to E-1, the lowest enlisted rank and a rank he would hold until the end of his sentence when he would be dishonorably discharged from the Army.
Three months after Sergeant Knight’s conviction, people continued to show interest in proving the 25-year-old Soldier’s innocence. One who showed interest was the German woman at whose home the alleged rape occurred.
In a “To Whom It May Concern” letter dated February 28, 2013, she wrote that she had known Sergeant Knight for more than two years, and then she dropped a bombshell, explaining that the sergeant’s unemployed accuser “told me SGT Knight did not rape her, and that she only said that because she didn’t want her boyfriend at that time to find out she was cheating on him.”
Unfortunately, communications with Knight’s family ended a few months after the trial — they were, to say the least, distraught — and resulted in me not receiving copies of several documents, including the Record of Trial. Things changed, however, a few days ago, after I came across Knight’s case among my military justice files and decided to contact his mother again.
In response, she sent me an electronic copy of the ROT as well as several documents related to his appeal. She stated that she wanted me to look through his documents as she wanted the opinion of someone who understood Appeal Law in relation to his case.
In the ROT, I learned several Soldiers selected to serve on the court-martial panel (i.e., the military equivalent of a jury) were in the rating chain of either the convening authority (i.e., the senior officer ordering a court-martial be held) or another panel member. Any chance of undue command influence as a result? Damn right!
I learned Sgt. 1st Class Gary G. Emmert told the court he had completed the 80 hours of Army Sexual Harassment/Assault Response and Prevention (SHARP) training necessary to serve as a sexual assault victim advocate and was, in fact, serving as the victim advocate for his unit at the time he was tasked to serve as a panel member.
I learned LTC John D. Koch told the court he had served on “multiple court-martials before” and, while that’s not unusual for a line officer of his rank, something else he said caught my attention. When asked if he had ever served on a panel adjudicating a sexual assault case, he answered, “Yes.” Asked how many times he had served on such a panel, he answered, “I believe twice. I’ve lost count of how many were there.”
Colonel Koch also confirmed that he had received “a sexual assault special briefing” for Army leaders while stationed at Vicenza, Italy, earlier the same year. During that special briefing, he and fellow trainees watched a 20-minute clip from “The Invisible War.” the Oscar-nominated documentary in which a handful of cases purported to be representative of the so-called sexual assault “epidemic” in the military are highlighted while solid facts, as highlighted in my recent article about lies, damned lies and statistics, are largely excluded.
Could forcing Soldiers to watch that film be construed as exerting undue command influence via brainwashing? I think so. But I digress.
Because the ROT contains 663 pages, I’ll use a 15-page document — the brief filed April 9, 2014, on Knight’s behalf with the Army Court of Criminal Appeals by Frank Spinner, his Colorado Springs-based civilian defense attorney, and Capt. Brian Sullivan, his military defense attorney — to help explain why the case against Knight was so weak. Below is the text of that document’s “Argument” section with boldface type added for emphasis by yours truly and the names of the accuser and the author of the aforementioned “To Whom It May Concern” letter redacted:
The government failed to prove beyond a reasonable doubt that SGT Knight engaged in an act of sexual intercourse with (accuser) while she was substantially incapacitated and that SGT Knight was not under a mistaken belief that she consented to sexual intercourse. The case is built on (accuser’s) credibility regarding what happened when she was alone with SGT Knight in the apartment bathroom.
The defense portrayed (accuser) as a woman who flirted with SGT Knight through the course of the social evening they experienced with mutual friends, but who turned on him after they consensually engaged in sexual intercourse and she learned he had a girlfriend. She did not back down from her claim, because she saw an opportunity to financially benefit from a victim compensation opportunity.
The government countered by claiming that SGT Knight took advantage of her because of the amount of her alcohol consumption, which left her vulnerable and impaired to the degree that she was unable to consent.
The government presented testimony from German police and Army forensic experts addressing chains of custody and laboratory analysis of evidence. Their testimony, however, was not helpful in determining the central issue of consent. They merely confirmed that a complaint was made and investigated, following normal protocols, even though the investigation was somewhat limited in scope.
SGT Knight did not testify, instead relying on the requirement for the government to prove their case beyond a reasonable doubt.
To the extent that accuser testified, she acknowledged that she had a poor, arguably selective, memory about what happened that night. No witness saw her pass out, nor was there any evidence she consumed any more alcohol than anyone else who socialized with them that evening. The accuser, an experienced drinker, who admitted to getting drunk on prior occasions, confirmed she had no more to drink that night than what is normal for her.
This begs the question: what evidence supports her claim that she was substantially incapacitated? There is no evidence other than that she consumed six drinks over a period of four hours. This amount of alcohol consumption, standing alone, does not prove substantial incapacitation beyond a reasonable doubt. The government did not present any evidence that accuser was drugged, even though she claimed that she may have been drugged.
Then there is the issue of whether the government disproved the mistake of fact affirmative defense beyond a reasonable doubt. When the testimony of the witness is combined with the photographs of SGT Knight and accuser, the evidence clearly supports a mistake of fact defense.
The witness’ testimony deserves closer scrutiny. The witness observed the interaction between accuser and SGT Knight at the critical point where SGT Knight went into the bathroom at her apartment. She also talked to accuser right after the alleged rape. Witness appears to have inferred from what she heard and observed that accuser pulled SGT Knight in the bathroom and rubbed her back and, afterwards, when telling witness that she had sex with SGT Knight, wanted to communicate with him again. It was at this point witness informed accuser that SGT Knight would not respond because he had a girlfriend. Thus, a potential motive for the claim was born.
One possible explanation for the court members’ decision involves the face that accuser vomited a couple of times that night. On the one hand, it could be argued that no one would have sex with another person in that condition. On the other hand, in the context of individuals drinking and flirting with each other, why would this face necessarily keep two people from having sex? There is not way this question can be easily answered. The real problem is whether any adverse inference that flows from this fact against SGT Knight should be drawn beyond a reasonable doubt. There is no empirical basis for drawing such an inference.
In the absence of any objective corroboration of accuser’s claim that she was sexually assaulted, what evidence makes her believable beyond a reasonable doubt? There is none. In fact, a number of considerations raise serious questions about her credibility. Why did she use a translator when she testified? Accuser was born to a U.S. Army soldier, and who was married to a U.S. Army soldier at the time of trial, simply did not need that assistance.
Then there is the question regarding whether accuser may have been drugged. Although she acknowledged that this is what she originally believed, by the time of trial, her belief had changed because there was no evidence to support this belief. At trial, her story became that in pretrial interviews the prosecutors helped her see how drunk she was. This is inconsistent, however, with the amount of alcohol this experienced drinker consumed that night by her own admission.
Finally, was there some financial motive behind her claim? She retained an attorney shortly after she made her initial complaint, for the purpose of seeking victim compensation from the Army.
Just as experts could not look at the physical evidence and determine whether they were caused by assaultive behavior, this Court cannot say beyond a reasonable doubt that accuser told the truth or that SGT Knight did not have a mistaken belief that she consented to sexual intercourse.
Perhaps as damning as the claim by the author of the “To Whom It May Concern” letter that the accuser had told her she had not been raped, is the fact the accuser received a payment from the U.S. Army as compensation for pain and suffering stemming from a rape that did not happen. While I’ve been told she received a payment in the neighborhood of $20,000, I’m attempting to obtain a copy of any official documentation that reveals the exact amount of money she received. I will share that amount in an update as soon as I get it.
SIX YEARS AGO TODAY, a trial began for Army Sgt. 1st Class Kelly A. Stewart inside a military courtroom in Germany.
Army Green Beret Sgt. 1st Class Kelly A. Stewart went from being a highly-decorated combat veteran in the top one percent of his profession to being a convicted felon. It began with a night in a hotel room. It ended in prison. Read about his wrongful conviction in Three Days In August. Click on image above to order book.
After a German woman had falsely accused Stewart of rape and kidnapping, the politically-correct military justice system seemed to do everything it could do to convict the veteran of multiple combat tours in Kosovo and Iraq — and they did it in only two days, with the trial beginning early on Aug. 18, 2009.
During the trial, prosecutors presented no physical evidence and no eyewitnesses. When Stewart’s defense attorneys tried to obtain copies of the medical records of Stewart’s accuser so they could be shared in court, his accuser — and the German government — refused to produce the records. Had those records been shared during the trial, they would have shown she suffered from mental illness and had, in fact, spent several months in a care facility prior to the night she spent with Stewart after they met at See Studio, a discotheque in Stuttgart.
Incredibly, the military judge did not end the trial at that point. Instead, he allowed this miscarriage of military justice — and several others I highlight in the book — to take place before the trial reached its conclusions on the evening of Aug. 19, 2009, and members of the court-martial panel (a.k.a., “jury”) announced their verdict.
On Day Three, Stewart was sentenced to eight years in prison and sent away to the U.S. Military Disciplinary Barracks at Fort Leavenworth, Kan.
Six months after the trial ended, I learned it had taken place and began to uncover details about Stewart’s case. Soon, I found myself reading the Record of Trial and speaking with individuals close to the case, including members of Stewart’s biological and military families.
Eighteen months after my interest was sparked, I finished chronicling Stewart’s life story and conviction and released it in book form as my first nonfiction book, Three Days In August.
Click on image above to learn more about Three Days In August and read endorsements of the book.
Though I’ve written many articles about the case and some big names have endorsed the book, the only way you’ll understand why I remain so passionate about wanting to see justice for this TOP ONE PERCENT SOLDIER is by reading Three Days In August.