Military commanders who overturn a jury's criminal conviction should be required to explain their decision, the Air Force's top civilian said.
"If a commander is going to make any changes, they got to write it down and be accountable, provide their rationale, so that's a part of the record," Air Force Secretary Michael Donley said during an April 23 briefing with reporters.
His comments came in response to a question about Lt. Gen. Craig Franklin, the three-star general who caused an uproar this year when he dismissed an officer's sexual assault conviction. Advocates called for his ouster and lawmakers proposed legislation that would strip commanders of their ability to reverse criminal convictions.
In light of the case, Defense Secretary Chuck Hagel said he would ask Congress to change Article 60 of the Uniform Code of Military Justice, the section of military law that gives commanders the authority to change a jury's verdict. Hagel said commanders would still be able to reduce or dismiss a conviction, though not in major cases and only after providing justification.
Donley said changing the section of law to require a written explanation "is the right place to start.” That portion of the code was adopted before the military’s appeals process was established, he said.
Donley also defended Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany, for “performing well” on missile-defense work in the Eastern Mediterranean and supervisory responsibilities in Northern Africa. Franklin upheld three previous sexual-assault convictions, he said.
Franklin, who isn't a judge or an attorney, defended his decision in a six-page letter he submitted voluntarily to the service. The document, dated March 12, and other materials and videos from the case were posted online in response to a Freedom of Information Act request.
In the letter, Franklin, who didn’t attend the trial, 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, Kimberly Hanks, who has since come forward publicly to discuss the matter.
Wilkerson, then the inspector general at Aviano Air Base in Italy and a former F-16 pilot, was found guilty of multiple charges, including aggravated assault. He was sentenced to a year in prison and dismissal from the service before Franklin overturned the conviction.
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.
There were no legal errors in the trial or its aftermath, Donley said.
"It's harder to see in this mix if justice was served as a part of all of this. People are going to arrive at different conclusions,” he said. “What is easier to see is that the broad scope of Article 60 probably needs to be changed. That comes through in our analysis and that's what we recommended to the secretary of defense, and that's what he's recommending to Congress."
Still, lawmakers and supporters of sexual-assault victims were highly critical of the rationale in 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."
Protect Our Defenders, a nonprofit based in Burlingame, Calif., called for Franklin to be dismissed from the service.
"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."
The case and the issue of sexual assault in the military were the subject of recent congressional hearings. 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.
|Military Justice Crime in the Military Brendan McGarry|