HARD CASES MAKE BAD LAW. Never Try to Change A Law Based On One Case.
Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany convened a court-martial to try Lt. Col. James Wilkerson III on charges of, among other things, sexual assault of a female, not his wife. Lt. Col. Wilkerson was tried by a jury and found guilty as charged. In performing his duties as Convening Authority under the Uniform Code of Military Justice (UCMJ), Lt. Gen. Franklin set aside the sexual assault conviction.
The February 2013 decision ignited a firestorm on Capitol Hill and drew scrutiny to the separate set of laws governing military members, known as the UCMJ. Following his review of the case, Defense Secretary Chuck Hagel proposed removing the convening authority from commanders in major cases.
(He did not specify what he thought would constitute a major case.)
Lt. Gen. Franklin defended his decision in a six-page letter he submitted to the service in response to the uproar. He said accusations that his motivation was to protect a fellow fighter pilot are "preposterous." Accusations that he doesn't understand sexual assault or take the crime seriously "are complete and utter nonsense," he wrote. Allegations that his decision was influenced by his previous role commanding a unit the pilot later served in "are equally preposterous," he wrote.
In the letter, Franklin, says he struggled with the decision. However, after he reviewed the evidence, he found the defendant, Lt. Col. James Wilkerson III, and his wife, Beth, more credible than the alleged victim, Ms Kimberly Hanks, who has since come forward publicly to discuss the matter.
Approving the jury's finding of guilt "would have been an act of cowardice," Franklin wrote. "I hold a genuine and reasonable doubt that Lt. Col. Wilkerson committed the crime," he wrote. "My court-martial action to disapprove findings and to dismiss the charges was the right, the just, and the only thing to do."
Wilkerson, then the inspector general at Aviano Air Base in Italy and a former F-16 pilot, was found guilty of multiple charges to include aggravated assault. He was sentenced to a year in prison and dismissal from the service before Franklin overturned the conviction.
Ms Hanks accused him of fondling her breasts and genitalia as she slept in his guest bedroom, according to court documents. The two met at a club with groups of friends after a rock concert that was held on base, organized by the USO and featuring the alternative rock band, Seether, according to her testimony.
Ms Hanks is a divorcee. She worked as a civilian contractor in the medical clinic on the base. She alleged that she previously did not know Lt. Col.Wilkerson but some how she wound up at his home in Roverado. Ms Hanks said she awoke in a bedroom with Lt. Col.Wilkerson when his wife entered the room, turned on the lights and said: "What the hell is going on?"
Ms Hanks testified that the woman then ordered her to, "Get the hell out of my house."
In his letter, Lt. Gen. Franklin said he was persuaded in part by the many letters of clemency from family, friends and colleagues of the Lt. Col. Wilkersons that "painted a consistent picture of a person who adored his wife and 9-year-old son, as well as a picture of a long-serving professional Air Force officer."
Lt. Gen. Franklin also makes a point to cast doubt on Lt. Col. Wilkerson's failed polygraph test.
"A polygraph is only an investigative tool to assist in the potential focus of the investigation and/or to attempt to elicit admissions of guilt," he wrote. "It is not a ‘lie-detector test,' nor is it ‘pass' or ‘fail.' Because of the inherent unreliability of polygraphs, they are entirely inadmissible in a court-martial."
As one would expect, lawmakers and supporters of sexual-assault victims were shocked by Lt. Gen. Franklin's letter.
"This explanation crystalizes exactly why the convening authority should not have the unilateral ability to overturn a jury verdict -- and why we need legislation that restricts their ability to do so," Sen. Claire McCaskill, D-Mo., said in a statement. "This letter is filled with selective reasoning and assumptions from someone with no legal training, and it's appalling that the reasoning spelled out in the letter served as the basis to overturn a jury verdict in this case."
In light of the case, McCaskill introduced legislation that would curtail the authority of military commanders to dismiss jury convictions against sex offenders.
Protect Our Defenders, a nonprofit based in Burlingame, Calif., called for Lt. Gen. Franklin to be dismissed from the military. "Lt. Gen. Franklin made a deeply flawed and inappropriate decision," the group's president, Nancy Parrish, said in a statement. "Rather than rely on the credibility determinations of the senior members of the jury he selected, Franklin chose to accept the word of Wilkerson's supporters."
Lt. Col. Wilkerson will remain on active duty and is being transferred to Davis-Monthan Air Force Base, Ariz., where he will become chief of flight safety for the 12th Air Force (Air Forces Southern), according to Master Sgt. Kelly Ogden, a spokeswoman for the unit. He is expected to arrive later this month or in early May.
Defense Secretary Chuck Hagel on April 8 said he would ask Congress to pass legislation that would prevent commanders from overturning convictions without explanation.
In 2011, less than half of the reported 3,200 sexual assaults in the military resulted in disciplinary action, according to the Defense Department. The number of actual sexual assaults each year is probably closer to 19,000, based on anonymous surveys of active-duty service members.
The number of sexual assaults at military academies has been on the rise. No cadet tried or convicted of sexual assault has had his conviction set aside by the Convening Authority.
Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.
The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.
Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite similar student populations.
In 44 of the 80 reports, victims said they were victimized by a fellow cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.
(U. S. Coast Guard Academy cadet, Webster Smith)
A cadet at the U. S. Coast Guard Academy was convicted of sexual assault in 2006. It was the first court-martial of a cadet in the history of the U. S. Coast Guard. Cadet Webster Smith was only six months away from graduating when he was accused, tried, and convicted. He protested his innocence. His case was appealed all the way to the U. S. Supreme Court, but the Supreme Court refused to grant a review of the conviction. Cadet Smith's petition was dismissed without comment by the Supreme Court.
The Webster Smith Story is an American tragedy. It is not just the story of a Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy. The Webster Smith case was a litmus test for justice in America.
Lt. Ariana Klay, a U. S. Naval Academy graduate, served as a protocol officer for the U. S. Marine Corps Barracks, Washington, DC. She alleged that while there, she was sexually harassed by a lieutenant colonel, a major and a captain. She said she was gang-raped by a Marine officer and his civilian friend, a former Marine.
Lt. Klay alleged that the Marine officer threatened to kill her and told his friend he would show him “what a slut she was” and “humiliate” her. After she reported the alleged rapes and subsequent harassment, the Marine Corps investigation ruled that she welcomed the harassment because “she wore makeup, regulation-length skirts as a part of her uniform and exercised in running shorts and tank tops.”
The Marine Corps did not punish any of those who were accused of sexually harassing Lt. Klay. One of her alleged harassers was granted a waiver by the Corps that permitted him to get a security clearance despite accusations of hazing and sexual misconduct against not only Lt. Klay but many others. He was selected to be in a nationally televised recruitment commercial while he was still under investigation.
The Marine Corps finally court-martialed one of Lt. Klay’s alleged attackers but didn’t convict him of rape, instead finding him guilty of adultery and indecent language (a common escape by military courts from the rape charge). The military court ruled that Lt. Klay “consented” to having sex with the men despite the evidence that the accused threatened to kill her. Lt. Klay has attempted suicide since the alleged rapes and harassment and has been diagnosed with post-traumatic stress disorder.
(SUBSEQUENT DEVELOPMENTS IN THE WILKINSON CASE)
Responding to growing political uproar over an Air Force
lieutenant general's decision to throw out a fighter pilot's jury
conviction for aggravated sexual assault, Defense Secretary Chuck Hagel
has ordered an investigation into the case and a review of the
provisions of the Uniform Code of Military Justice that empower
commanders to overrule the verdicts of court-martial juries.
In a March 7 letter written to Sen. Barbara Boxer, D-Calif., one of several senators who have expressed outrage over the case of Lt. Col. James Wilkerson, Hagel said he had ordered the probe into the decision by Air Force Lt. Gen. Craig Franklin to dismiss Wilkerson's sexual assault conviction and reinstate him to the Air Force.
"I believe this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial," Hagel wrote, "particularly prior to the robust appellate process made available by the UCMJ."
Hagel indicated that review of the case had already begun.
"I have directed the Secretary of the Air Force, in coordination with the Acting General Counsel of the Department of Defense, to review this case to assess whether all aspects of the UCMJ were followed, and, after consultation with the Secretaries of the Army and the Navy, to report to me on whether the case points to changes that should be considered in the UCMJ, or in the military services' implementation of the UCMJ and, if so, what changes should be made," Hagel wrote.
Hagel also told Boxer that he did not have the authority under the Uniform Code of Military Justice to overturn the case dismissal.
Boxer was among several senators who last week wrote Hagel to ask him to look into the matter and join her in working to remove commander discretion in sexual assault case dispositions.
Hagel's letter underscored the continuing fallout from the case. Critics of the way the military handles sexual assault incidents called it the "poster child" for what's wrong with the military justice system.
In overruling the jury's verdict, Franklin, himself a fighter pilot, had disregarded the recommendation of his staff lawyer, who had advised him that defense claims of legal errors in the court-martial were "without merit."
The adviser, Col. Joseph Bialke, recommended that Franklin approve Lt. Col. James Wilkerson's conviction but modify his sentence to double his time in prison from one to two years and also reverse his dismissal from the service.
Reversing the dismissal would have allowed Wilkerson and his family to collect retirement pay and benefits.
Instead, Franklin's decision matched the advice from Wilkerson's defense lawyer, Frank Spinner.
"(T)he findings of guilty should be set aside and dismissed because the government failed to prove guilt beyond a reasonable doubt," Spinner wrote to Franklin, Third Air Force commander and the authority who convened Wilkerson's court-martial.
"The law gives you, personally, tremendous power to do justice," said Spinner's letter, a copy of which was reviewed by Stars and Stripes. "I challenge you to do the right thing for the right reason."
Court-martial convening authorities may overturn verdicts or reduce sentences "for any reason or no reason," according to the Uniform Code of Military Justice, although tossing out a conviction is exceedingly rare.
Franklin dismissed the case because he had "concluded that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt," according to a written statement from the Third Air Force.
"We appealed to his conscience," Spinner said Monday. "I believe he was not personally convinced beyond a reasonable doubt of Lt. Col. Wilkerson's guilt. I don't know why people can't respect that."
Franklin's dismissal of the case has angered some lawmakers concerned about high rates of sexual assault in the military and a military justice system that victims' advocates say still discounts victims and excuses offenders. It has been called a "tipping point" that could change the Uniform Code of Military Justice to strip commanders of discretionary power in sexual assault case disposition.
Three U.S. senators last week demanded investigations into the case by top defense officials. Sen. Claire McCaskill, a Missouri Democrat and a senior member of the Senate Armed Services committee, sent a letter to Air Force Chief of Staff Mark A. Welsh III saying Franklin had shown "ignorance, at best, and malfeasance, at worst" and perhaps should be relieved of command.
On Tuesday, Today, (March 12) Democratic Congresswoman Rep. Jackie Speier is expected was to introduce legislation to remove commanders' powers to overturn verdicts or reduce sentences handed down by military judges and juries.
And on Wednesday, the case is expected to be discussed at a Senate hearing with witnesses to include victims' advocates and the military's top lawyers.
Wilkerson, 44, was the 31st Fighter Wing inspector general at Aviano Air Base, Italy, an "Air Force superstar," according to a February 2012 performance evaluation. The next month, the F-16 pilot was accused by a civilian physician assistant he'd met only that night of groping her breasts and vagina as she lay sleeping in a guestroom after an impromptu party at the Wilkerson home.
The assault ended, the woman testified at the court martial, as she was awakened by feelings of "discomfort" as she was being groped, and simultaneously a light came on. She said she saw Wilkerson's face inches from her own and Wilkerson's wife, who had invited her to stay over when she was left at the party without a ride back to the base, standing in the doorway.
Wilkerson's wife ordered her out, she said, and she walked away, shoeless, around 3 a.m.
His wife told the jury that she had asked the woman to leave because she was making noise and being "erratic." She testified that afterward, she had felt bad, gotten in the car and made a fruitless search for her before returning to bed. She testified that her husband had slept undisturbed through the night and that she had not told him about those events until he awoke hours later to make breakfast.
Wilkerson did not testifiy never testified at his trial.
Prosecutor Col. Don Christensen argued that the woman, a 49-year-old medical professional, had no reason to invent the assault and endure an intrusive legal process that could destroy the career and family of people she'd just met.
Spinner, Wilkerson's lead defense lawyer, first told the jury that the accuser had concocted the assault because she'd had romantic designs on a colonel who'd left the party with someone else, making her set on revenge. Later in the trial, Spinner argued that she had "imagined" the assault for reasons that might never be known.
Franklin overturned the jury verdict after a uniquely military post-trial clemency review that included scores of letters from Wilkerson supporters.
"The reason so many of your subordinates and others have written clemency letters," Spinner wrote, "is because they know the Wilkersons and collectively they observed most of the trial. When so many Air Force members and individuals raise serious questions about whether the trail achieved a just result, that should cause you concern."
Spinner cited two rulings by the judge, Col. Jefferson Brown, that in his view were in error and, he said, helped wrongfully convict his client. One was not to allow the testimony of the current wife of the accuser's ex-husband on the accuser's general truthfulness, based on her experience a decade ago in a custody battle.
The other was Brown's ruling preventing a Wilkerson family friend, a dentist, from testifying about Wilkerson's general truthfulness.
Spinner acknowledged that the SJA had not considered those rulings to be in error and questioned whether the lawyer's advice had been thoughtful.
"Colonel Bialke dismisses the defense clemency submission with the line, "I have considered these allegations of error and I find them to be without merit,'" Spinner's letter said. "If this were a matter involving how to fly a combat mission, I question whether you would accept such a perfunctory statements from one of your pilots if there were a dispute over tactics."
Spinner said on Monday that he believed Bialke might have been intimidated by a political climate hostile to aquittals of people accused of sexual assault.
Spinner also urged Franklin to disregard a letter from the woman Wilkerson had been convicted by the jury of assaulting.
She had a "dog in the fight", Spinner wrote, and "her post-trial letter should carry little weight in making your decision." Wilkerson had been selected for promotion to colonel. But in January, the Secretary of the Air Force removed the Wilkerson's name from the promotion list, "based on evidence considered in his court-martial proceedings," according to a statement from the Air Force Personnel Center.
Despite Franklin's action, the Air Force secretary's decision would stand unless Wilkerson persuaded an Air Force board that his name should not have been removed, the statement said.
It was unclear whether that evidence referred only to the alleged sexual assault or included other, undisputed evidence prosecutors had introduced at trial. Wilkerson in his previous assignment had during a party peered over a bathroom stall at the urinating wife of a subordinate, for example.
Spinner said the Wilkersons were thrilled by the case outcome; it meant among other things that Wilkerson not have to register as a sex offender.
"To have that taken from over your head is like a new lease on life," Spinner said.
In a March 7 letter written to Sen. Barbara Boxer, D-Calif., one of several senators who have expressed outrage over the case of Lt. Col. James Wilkerson, Hagel said he had ordered the probe into the decision by Air Force Lt. Gen. Craig Franklin to dismiss Wilkerson's sexual assault conviction and reinstate him to the Air Force.
"I believe this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial," Hagel wrote, "particularly prior to the robust appellate process made available by the UCMJ."
Hagel indicated that review of the case had already begun.
"I have directed the Secretary of the Air Force, in coordination with the Acting General Counsel of the Department of Defense, to review this case to assess whether all aspects of the UCMJ were followed, and, after consultation with the Secretaries of the Army and the Navy, to report to me on whether the case points to changes that should be considered in the UCMJ, or in the military services' implementation of the UCMJ and, if so, what changes should be made," Hagel wrote.
Hagel also told Boxer that he did not have the authority under the Uniform Code of Military Justice to overturn the case dismissal.
Boxer was among several senators who last week wrote Hagel to ask him to look into the matter and join her in working to remove commander discretion in sexual assault case dispositions.
Hagel's letter underscored the continuing fallout from the case. Critics of the way the military handles sexual assault incidents called it the "poster child" for what's wrong with the military justice system.
In overruling the jury's verdict, Franklin, himself a fighter pilot, had disregarded the recommendation of his staff lawyer, who had advised him that defense claims of legal errors in the court-martial were "without merit."
The adviser, Col. Joseph Bialke, recommended that Franklin approve Lt. Col. James Wilkerson's conviction but modify his sentence to double his time in prison from one to two years and also reverse his dismissal from the service.
Reversing the dismissal would have allowed Wilkerson and his family to collect retirement pay and benefits.
Instead, Franklin's decision matched the advice from Wilkerson's defense lawyer, Frank Spinner.
"(T)he findings of guilty should be set aside and dismissed because the government failed to prove guilt beyond a reasonable doubt," Spinner wrote to Franklin, Third Air Force commander and the authority who convened Wilkerson's court-martial.
"The law gives you, personally, tremendous power to do justice," said Spinner's letter, a copy of which was reviewed by Stars and Stripes. "I challenge you to do the right thing for the right reason."
Court-martial convening authorities may overturn verdicts or reduce sentences "for any reason or no reason," according to the Uniform Code of Military Justice, although tossing out a conviction is exceedingly rare.
Franklin dismissed the case because he had "concluded that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt," according to a written statement from the Third Air Force.
"We appealed to his conscience," Spinner said Monday. "I believe he was not personally convinced beyond a reasonable doubt of Lt. Col. Wilkerson's guilt. I don't know why people can't respect that."
Franklin's dismissal of the case has angered some lawmakers concerned about high rates of sexual assault in the military and a military justice system that victims' advocates say still discounts victims and excuses offenders. It has been called a "tipping point" that could change the Uniform Code of Military Justice to strip commanders of discretionary power in sexual assault case disposition.
Three U.S. senators last week demanded investigations into the case by top defense officials. Sen. Claire McCaskill, a Missouri Democrat and a senior member of the Senate Armed Services committee, sent a letter to Air Force Chief of Staff Mark A. Welsh III saying Franklin had shown "ignorance, at best, and malfeasance, at worst" and perhaps should be relieved of command.
On Tuesday, Today, (March 12) Democratic Congresswoman Rep. Jackie Speier is expected was to introduce legislation to remove commanders' powers to overturn verdicts or reduce sentences handed down by military judges and juries.
And on Wednesday, the case is expected to be discussed at a Senate hearing with witnesses to include victims' advocates and the military's top lawyers.
Wilkerson, 44, was the 31st Fighter Wing inspector general at Aviano Air Base, Italy, an "Air Force superstar," according to a February 2012 performance evaluation. The next month, the F-16 pilot was accused by a civilian physician assistant he'd met only that night of groping her breasts and vagina as she lay sleeping in a guestroom after an impromptu party at the Wilkerson home.
The assault ended, the woman testified at the court martial, as she was awakened by feelings of "discomfort" as she was being groped, and simultaneously a light came on. She said she saw Wilkerson's face inches from her own and Wilkerson's wife, who had invited her to stay over when she was left at the party without a ride back to the base, standing in the doorway.
Wilkerson's wife ordered her out, she said, and she walked away, shoeless, around 3 a.m.
His wife told the jury that she had asked the woman to leave because she was making noise and being "erratic." She testified that afterward, she had felt bad, gotten in the car and made a fruitless search for her before returning to bed. She testified that her husband had slept undisturbed through the night and that she had not told him about those events until he awoke hours later to make breakfast.
Wilkerson did not testifiy never testified at his trial.
Prosecutor Col. Don Christensen argued that the woman, a 49-year-old medical professional, had no reason to invent the assault and endure an intrusive legal process that could destroy the career and family of people she'd just met.
Spinner, Wilkerson's lead defense lawyer, first told the jury that the accuser had concocted the assault because she'd had romantic designs on a colonel who'd left the party with someone else, making her set on revenge. Later in the trial, Spinner argued that she had "imagined" the assault for reasons that might never be known.
Franklin overturned the jury verdict after a uniquely military post-trial clemency review that included scores of letters from Wilkerson supporters.
"The reason so many of your subordinates and others have written clemency letters," Spinner wrote, "is because they know the Wilkersons and collectively they observed most of the trial. When so many Air Force members and individuals raise serious questions about whether the trail achieved a just result, that should cause you concern."
Spinner cited two rulings by the judge, Col. Jefferson Brown, that in his view were in error and, he said, helped wrongfully convict his client. One was not to allow the testimony of the current wife of the accuser's ex-husband on the accuser's general truthfulness, based on her experience a decade ago in a custody battle.
The other was Brown's ruling preventing a Wilkerson family friend, a dentist, from testifying about Wilkerson's general truthfulness.
Spinner acknowledged that the SJA had not considered those rulings to be in error and questioned whether the lawyer's advice had been thoughtful.
"Colonel Bialke dismisses the defense clemency submission with the line, "I have considered these allegations of error and I find them to be without merit,'" Spinner's letter said. "If this were a matter involving how to fly a combat mission, I question whether you would accept such a perfunctory statements from one of your pilots if there were a dispute over tactics."
Spinner said on Monday that he believed Bialke might have been intimidated by a political climate hostile to aquittals of people accused of sexual assault.
Spinner also urged Franklin to disregard a letter from the woman Wilkerson had been convicted by the jury of assaulting.
She had a "dog in the fight", Spinner wrote, and "her post-trial letter should carry little weight in making your decision." Wilkerson had been selected for promotion to colonel. But in January, the Secretary of the Air Force removed the Wilkerson's name from the promotion list, "based on evidence considered in his court-martial proceedings," according to a statement from the Air Force Personnel Center.
Despite Franklin's action, the Air Force secretary's decision would stand unless Wilkerson persuaded an Air Force board that his name should not have been removed, the statement said.
It was unclear whether that evidence referred only to the alleged sexual assault or included other, undisputed evidence prosecutors had introduced at trial. Wilkerson in his previous assignment had during a party peered over a bathroom stall at the urinating wife of a subordinate, for example.
Spinner said the Wilkersons were thrilled by the case outcome; it meant among other things that Wilkerson not have to register as a sex offender.
"To have that taken from over your head is like a new lease on life," Spinner said.
Labels: Cadet Webster Smith.
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