Hagel Orders Review of UCMJ Sex Assault Rules

Air Force Lt. Col. James Wilkerson

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.

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