Straight from the Stars and Stripes (a news source that focuses on the Armed Forces):
The fighter pilot freed from jail and reinstated into the Air Force last month after a lieutenant general set aside his sexual-assault conviction was taken off a promotion list, the Air Force said, making it unlikely he will move up in rank any time soon.
Lt. Col James Wilkerson, whose case has sparked calls from Congressional lawmakers and sexual assault victims’ advocates for changes to the military justice system, had been selected for promotion to colonel before he was accused of groping a sleeping houseguest. He was convicted in November at a jury trial of aggravated sexual assault.
In January, the Secretary of the Air Force removed the F-16 pilot’s name from the promotion list. Wilkerson’s removal was “based on evidence considered in his court-martial proceedings,” according to a statement from the Air Force Personnel Center.
Despite Lt. Gen. Craig Franklin’s action to set aside the jury verdict on Feb. 26 and reinstate Wilkerson to full-duty status, 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 is impossible for me to attack the decision of Lt. Gen. Franklin, as I have not reviewed the record of trial, evidence, clemency matters, etc. So, I'm woefully uninformed as to the merits of the case. However, I do know the nuts and bolts of how this happened.
Let me explain.
The court-martial process is very similar to civilian criminal courts in many ways. However, there are also distinct differences. Most notably, it is controlled by Generals/Admirals under whose authority the courts occur, and they have final approval rights for any conviction and/or sentence. This is allowed under the Uniform Code of Military Justice (located in Title 10 of the US Code).
What do we know? Let's review a bit more of what the Stars and Stripes tells us.
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 he was accused by a civilian physician’s assistant of groping her breasts and vagina as she lay sleeping in a guestroom after an impromptu party at the Wilkerson home.
At the end of a weeklong court-martial, a jury in November convicted Wilkerson of aggravated sexual assault and sentenced him to a year in jail, total pay forfeiture and dismissal.
Franklin, commander of the Third Air Force and the authority who convened Wilkerson’s court-martial, set aside the verdict and sentence after a post-trial review that included scores of letters from Wilkerson supporters.
Although the jury of four colonels and a lieutenant colonel had found Wilkerson guilty beyond a reasonable doubt, Franklin was not convinced that the standard had been met, according to a Third Air Force statement.
OK, so, let's make a list of chronological events (the ones most relevant to this article):
- Wilkerson was convicted of sexual assault by a jury (called a panel in the military), consisting of 4 Colonels and 1 Lieutenant Colonel (the minimum necessary (5) for a General Court-Martial).
- He was sentenced to 1 year of confinement, forfeiture of all pay, and a dismissal (equivalent to a Dishonorable Discharge). He was sentenced by the same panel that found him guilty. Note that this panel heard all evidence that was admitted by each side, to include matters in mitigation and extenuation.
- The full record of trial, trial transcripts, etc. are sent through the prosecutors office to the JAG Colonel who advises the General on all legal matters. This Colonel drafts a memo with his/her analysis and recommendations. This includes consideration of any matters which may cause reversible error on appeal. Everything is then given to defense counsel, including the memo.
- Defense counsel creates a written response to everything, asking for as much relief as he/she thinks they can get (and then some). They can request that findings of guilt be set-aside. They can also address punishment and request that it be reduced or eliminated altogether. Defense counsel can say what they want and include any written materials they feel are important in making this decision. I've created many of these, and they ranged from a few pages to hundreds and hundreds of pages. I suspect the defense matters in this case were decidedly voluminous.
- Everything then goes to the General (Franklin, in this case), who must make two important decisions. He normally makes these decisions while conferring with his JAG Colonel advisor. First, he must decide whether or not to approve the findings of guilt. In this case, he clearly decided to disapprove the findings and return Wilkerson to duty. For this reason, I won't even talk about the second decision, as it is now moot.
- The decision by Lt. Gen. Franklin is final. No appeals are possible. Done and done.
There you go, in a nutshell.
This begs many questions, most of which depend on the details contained in the trial record, clemency matters, etc. I don't know these. In all likelihood, neither do you.
Here are a few of the questions I would ask.
- What if Wilkerson were not Lieutenant Colonel Wilkerson? What if he were Airman Wilkerson? Would he be free now, or would he continue to occupy a cell at Fort Leavenworth.
- Franklin and Wilkerson are both pilots. Did this play a role? I realize that questioning this also questions the integrity of Franklin, but pilots are often a very, very close fraternity. So, it is not completely out of the question.
- What did a jury of 4 Colonels and 1 Lieutenant Colonel get wrong? What did they screw up? What did they not consider? Considering that at least 2/3 were needed to sustain a finding of guilty, at least 4 of 5 needed to concur. Considering even further that a military judge shepherded the process, the likelihood of them causing a catastrophic error is deeply diminished.
- Did something happen that could, without a doubt, constitute reversible error on appeal? If so, the General has saved the Air Force a lot of time and money on a fruitless case.
Make no mistake, Lt. Gen. Franklin's actions are extraordinary. I've only heard of it happening in very limited ways with extraordinary evidence. Even then, I've never been part of a trial where all findings of guilt were disapproved. Normally, generals/admirals affirm the findings of a jury without hesitation.
I don't know much about this case, but it does inspire volumes of questions. I can, however, tell you that I'll keep copies of these articles archived in the unlikely event that I ever represent some young Airman who is accused of the same or similar crimes.
Prior to this case, I've told my clients/potential clients facing trials and appeals in sexual assault cases that there has never been a worse time to be accused of such things in the military because of the battering the Armed Forces have taken for their past treatment of sexual assault allegations.
Maybe that generalization wasn't as right as I thought it was.
Often, I receive calls from individuals seeking to appeal discharges, courts-martial, nonjudicial punishment, and other adverse actions.
Let me be perfectly clear. It is always harder to appeal something. The earlier you are in the process, the better your chances of winning.
Here is an example.
Private Claude is caught using his roommate's ATM card to withdraw money from the PX ATM. The video from the machine is grainy, and the film is extremely poor quality. It is not possible to make a clear identification of the person with the card. The roommate gives a statement saying that he left his ATM card on top of his desk, but locked the door when he left the room for the evening.
Investigators first decide to question Claude, since he shares the room where the ATM card was last seen. The investigators use several interrogation techniques with Claude, including "Mutt and Jeff" and lying about evidence. They make Claude believe that he is clearly seen on the ATM video.
Claude gives a full confession to stealing the ATM card and using it to obtain money from the ATM.
The command brings court-martial charges against Claude, accusing him of larceny by stealing the ATM card and using it to make withdrawals. Claude goes to his government defense counsel who advises pleading guilty at court-martial in exchange for no more than 6 months of confinement.
At court-martial, Claude pleads guilty. At sentencing, the only evidence given at the trial is Claude saying he is sorry and asking the judge to be lienient.
The judge sentences Claude to 6 months in jail and a Bad-Conduct Discharge.
5 years later, Claude feels wronged by the Bad-Conduct Discharge and wants to appeal it to the Discharge Review Board.
Now, let's look at Claude's missed opportunities.
First, he did not invoke his right to remain silent (Constitution, 5th Amendment and Article 31, UCMJ). This is absolutely critical, especially if you know you are guilty. Without Claude's confession, the prosecutors' only evidence is a bad video and the fact that the card was last seen in Claude's room.
Claude allowed the investigators to manipulate him with interrogation techniques. Those investigators are trained professionals. They question suspects for a living. Once you allow them to ask questions, you already lost. Claude should have invoked his right to remain silent and demanded to speak to an attorney. At that point, the investigators are legally obligated to stop asking questions.
At trial, Claude pled guilty. While this is occasionally the only appropriate thing to do, this case requires a few other considerations. First, is there a way to keep the confession out of the court-martial. This is called suppression. Your court-martial lawyer can make an argument to show that you were coerced into making a statement. While these arguments by your court-martial lawyer often fail, they occasionally work. In your case, you deserve to have your lawyer at court-martial explore those options--especially since the confession is the only concrete evidence of guilt.
If the confession remains, you must put on a solid sentencing case. Here, the only sentencing case is Claude's remorse and appeal for the judge to be lienient. Even though Claude pled guilty, he could still call witnesses to talk about his qualities as a soldier, his rehabilitative potential, and prior good acts. A good sentencing case takes almost a full duty day to present to the court.
The judge was fairly harsh by awarding a Bad-Conduct Discharge. It is possible that a jury (panel) would be more lienient, especially after hearing the information. This is something that should be considered by you and your court-martial lawyer. While the judge may be the only safe option, you should also consider the other possibilities. The important thing here is to make an educated decision because you must live with the consequences.
Some clients choose to take the easy out at court-martial or administrative separations. They figure that they can always appeal anything bad. This is not a smart move.
For instance, a court-martial appeal is not a retrial. The appeal looks at the actions of the judge, the prosecutor, and your court-martial attorney to determine if there was anything that was legally harmful to your case. Except in exceptional circumstances, they will not consider the evidence of guilt or innocence. Essentially, they look to ensure that the trial followed the rules for court-martial. Considering that the court-martial process was overseen by a judge, a prosecutor, and your court-martial attorney, the chances of a truly harmful error destroying the fairness of your trial are slim.
The same goes if you are seeking to upgrade your discharge. The Discharge Review Board will ask two questions of Claude:
1. If you are innocent, why did you plead guilty?
2. If a judge at court-martial heard all the evidence and thought you deserved a BCD, why should we question that?
Thos are very difficult questions to overcome.
What is the lesson to be learned? Fight early, and fight often. Never give up, and make sure your court-martial lawyer or advocate is asking the right questions and educating you on all the issues. You may want to escape. You may feel like quitting. Now is not the time.
Your future depends on it.
Major Nidal Hasan has been found guilty--of contempt.
It seems that Hasan, for religious reasons, chooses to sport an impressive (by some standards) beard, and the military judge in his court-martial is none too happy about it. To date, Colonel Gregory Gross has held Hasan in contempt of court and excluded him from a few pretrial hearings (though allowed him to view via VTC and communicate with his counsel).
So, Hasan loses $1000, the punishment for contempt, and he faces the possibility of being shaven by force prior to trial. Just so you know, he still receives full pay and benefits as he awaits his trial.
Note: There is a procedure for receiving religious accommodations in the military. It requires a bit of bureaucratic maneuvering, but it is possible, as a few Sikh soldiers at Walter Reed Army Medical Center are allowed to wear full beards. I think another also wears a nifty camo turban. To my knowledge, Hasan has not applied for an official accommodation.
Now, I've appeared before Judge Gross on a couple of occasions, served as one of his part-time magistrates, and observed him in other cases when the defense counsel who worked for me represented their clients at courts-martial. My experience is that he is generally mild-mannered and fair. While he didn't always rule as I wished, I never perceived that he was a government hack, nor favoring any particular ideology at court-martial.
Considering the scrutiny that the Hasan case will receive on appeal (assuming he is found guilty and sentenced to death), it will be interesting to see how the judge proceeds as the trial nears. If you read the linked Time article, you'll see that scholars have differing opinions as to how the judge should respond.
It will also be interesting to observe the level of client control exhibited by assigned defense counsel.
Far too often, courts-martial end badly for the service member involved. Even cases that end well normally leave the accused worse than they were before the preferral of court-martial charges.
Recently, we received news that one of our past court-martial cases ended extremely well for the young man accused of crimes.
Three years ago, he faced over a dozen charges ranging from drug dealing to being late for duty. In all, he faced more than 80 years in jail and a dishonorable discharge if convicted at court-martial. By the end of trial, all the most serious charges were dropped, and he was only found guilty of having drugs in his urine on two occasions. Even then, the defense team objected to the evidence presented by the prosecution. He was sentenced to 120 days of confinement and a Bad-Conduct Discharge by a military jury.
Just a few weeks ago, we discovered that an appeals court overturned the guilty verdicts of the court-martial. It was a great result for a good young man. We are thrilled at the fact that he faces a rejuvenated future and possible Army career.
This month, we begin focusing on serving military installations in the Bluegrass State, Kentucky, to include Fort Campbell and Fort Knox. Our available services include anything from courts-martial, administrative discharges, nonjudicial punishment (Article 15), and other military legal matters.
We look forward to providing service to these installations, whether as serious as a court-martial or as little as a complaint of wrongs.
For individuals convicted at court-martial, the long-term effects can be onerous. While jail is a short-term possibility, most servicemembers convicted at court-martial suffer through long-term stigma caused by the process.
1. The Discharge. A court-martial usually may impose a punitive discharge. There are two of these: Bad-Conduct Discharge and Dishonorable Discharge. While there are differences between them, you must understand that they both hurt your chances of obtaining employment, further education, and, depending on your state of residence, your rights.
2. Titling. Even if you are not convicted at court-martial, you may be "titled" with your service's criminal investigations division. This is a record of an investigation against you that will remain in law enforcement databases for 40 years. A routine background check may show these records, and it has the potential of impacting future employment--even without a court-martial conviction.
3. Offender Registration. Depending on your state and the nature of the crimes resulting in court-martial conviction, you may be required to register with the offender database. This means that anyone can access the database online and see your picture, personal information, and the charges for which you were found guilty. This can cause humiliation for you and your family as well as difficulty in finding a job and higher education.
Know your rights and fight every legal battle to the fullest extent. While jail may occur after a court-martial, the stigma of the other punishments can be far more detrimental to your future success.
Sexual assault in the military is a regularly-evolving set of laws. Prior to 2007, the laws remained relatively unchanged, but victim-advocacy groups and lawmakers updated Article 120 of the Uniform Code of Military Justice to reflect current perceptions of the crimes and victim rights.
As a result, the laws make it tougher to fight allegations of sexual assault at court-martial and obtain a Not Guilty verdict at court-martial. Essentially, they lower the bar for those seeking to put alleged rapists and sexual assaulters in jail.
In addition to changed laws, many of the services now assign specially-trained prosecutors to these cases. Called Special Victim Prosecutors (SVPs), they specialize in prosecuting these cases. Normally, one general-purpose Trial Counsel is also assigned to the case. This means that the prosecution team consists of no less than 2 prosecutors attempting to secure a conviction against the accused. Meanwhile, most Trial Defense shops are only able to assign one defense attorney to each case.
Consider the odds, and consider your future.
During the past 2 years, the military has moved quickly to address the use of spice (synthetic marijuana, K2) among servicemembers. Depending on the circumstances, you could find yourself subject to a court-martial, nonjudicial punishment, or administrative separation if you are caught or confess to using spice.
Remember a few key points:
1. Never forget that you have the right to remain silent. Use it. Many spice cases would not occur if the individual did not tell on themselves. The 5th Amendment is your friend.
2. The military can test for the presence of certain types of spice. Those people who tell you that it cannot be detected on a urinalysis may not be giving you good information.
3. The military is downsizing, and that's bad news for anyone with reported/substantiated misconduct. Right now, the Department of Defense is looking to cut nearly 100,000 servicemember slots. Because of this, second chances are given more and more infrequently.
Make sure you take advantage of representation when you have it. It may be your only chance at keeping your job.