The Mayer Law Blog

Can a General Do This?

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):

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.

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