Mayer Law Office

Straight from the Stars and Stripes (a news source that focuses on the Armed Forces):

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.

OK, so, let's make a list of chronological events (the ones most relevant to this article):

1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

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.

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.

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.