As is being discussed in comments, here is a link to the Stars and Stripes article about the CA’s decision in United States v. Wilkerson.  Our prior coverage of the verdict and sentence is here and here.  Some snippets in the Stripes story:

Wilkerson’s accuser said she was “stunned.”

“I was assaulted. I reported it. I endured the public humiliation and the end result is that it was all for nothing,” she said in a statement.

She said she thought that the reversal would have a negative impact on people’s willingness to report assaults and that it “smacks of cronyism, a good old boys network among the elite of the Air Force.

“Would the Lt. General’s decision been the same if Wilkerson had been enlisted or not a pilot?” she said.

. . . .

But critics of the military response to sexual assault said they were not surprised by Franklin’s decision to dismiss the case.

“It’s a classic example of the broken military justice system,” said Nancy Parrish, president of Protect Our Defenders, an advocacy and support organization for military sexual assault victims.. “It’s absolute command discretion over the rule of law.”

. . . .

“It’s a system full of command bias and conflict of interest,” Parrish said. “The culture is still about blaming the victim and punishing the victim. Until you remove inherent bias and conflicts of interest, justice will not be served.”

Additional coverage here (Air Force Times).

41 Responses to “Air Force CA Overturns LTC Wilkerson, Former Aviano IG, Case in Post-Trial Review”

  1. SFC V says:

    If the evidence didn’t support a guilty verdict shouldn’t the CA and SJA have figured that out before trial?  Why waste the resources on a trial only to dismiss all the charges? 
     
     

  2. k fischer says:

    I completely agree with Nancy Parrish that this case is a perfect example of the broken military justice system.  It strongly appears that Lt. Gen. Franklin referred this case because of the pressure on the military to appear tough on sexual assault and was forced to do the right thing after the panel convicted Wilkerson.  (The conviction was probably based on 2/3’s of the panel members thinking that the old man wouldn’t waste their time with a bs court martial.) When the Commanders’ discretion is influenced by the political climate, then falsely accused people like Lt. Col. Wilkerson are the ones who suffer.
     
    Wait……I just read the the rest of the stuff about Ms. Parrish that followed the words “Protect Our Defenders,” which apparently is not a criminal defense group whose mission is to defend those men who are falsely accused of sexual assault…….please disregard and carry on……

  3. Zachary Spilman says:

    “It’s a classic example of the broken military justice system,”  said Nancy Parrish, president of Protect Our Defenders, an advocacy and support organization for military sexual assault victims.. “It’s absolute command discretion over the rule of law.”

    The organization is among numerous advocacy groups and members of Congress calling for the chain of command to lose all authority over sexual assault cases.

    “It’s a system full of command bias and conflict of interest,” Parrish said. “The culture is still about blaming the victim and punishing the victim. Until you remove inherent bias and conflicts of interest, justice will not be served.”

    Never thought I’d say this, but Nancy Parrish, meet any trial defense counsel. Trial defense counsel, meet Nancy Parrish.

  4. WWJD says:

    I had the same thought as K Fischer….

  5. stewie says:

    So you think the same convening authority who has the cajones to dismiss a conviction in this case would be the same one too scared to not kill it prior to going to trial?
     
    That seems unlikely to me.  Suspect it’s not so simple as that.

  6. Mike "No Man" Navarre says:

    I think whatever you believe about the merits, the USG spent an incredible amount of money and got very little out of it.

  7. Vic Ferrari says:

    I wasn’t at the trial and have no inside info, but from the original article from S&S on the trial itself, Mr Spinner says that there was character for truthfulness evidence the MJ kept out.  I’m wondering if he didn’t include all of that in his clemency submission.  Although not as effective as it might be in court, submitting otherwise inadmissible evidence in a clemency package is a good way of getting the info in front of a “decider,” to quote our previous CINC.

  8. SFC V says:

    Prosecutor’s are subject to political presure at every level.  It’s not something unique to the military system.  It takes much bigger stones to dismiss a sex assault conviction after the fact than to say we don’t have enough evidence to support a conviction before trial. 
     
    Those who complain of bias in a system don’t usually want to eliminate it they just want it to tilt in a certain direction. 
     

  9. Vic Ferrari says:

    A frequent comment heard when JAGs get together and discuss Art 120 cases is “there’s no way a local civilian district attorney would take any of these he-said-she-said cases to trial.”  I’m wondering, though, whether that’s actually true?  I’ve tried lots of courts-martial, but never worked at a DA’s office.  Has there been any kind of research or study into whether DAs take more or fewer cases to trial?  How could we even quantify that? 

  10. N says:

    Vic,
    No research that I’m aware of, but I’ve seen a lot of he-said/she-said 120 cases in military courts after the local and state authorities passed on them.
     

  11. W says:

    Some more research that would be helpful:  Number of times a GCM dismssed a case after a verdict of guilty and a sentence of dismissal + confinement.

  12. Charlie Gittins says:

    W:  In 25 years I only saw one case where a finding of guilty (no confinement, no BCD) was set aside by the CA.  It was in Japan, circa 1988.  Charge was rape and forcible sodomy at a GCM.  Accused testified and claimed consesual intercourse and BJ.  The JN’s white USAF boyfriend found out about her tryst with the black Marine SGT and, well, you know the rest of the story.  One of the enlisted members (a SGM) was fit to be tied that the SGT was convicted of consensual sodomy — “who in this room has not received a BJ?” I believe was his refrain to his fellow members before they voted by 2/3 to convict.  He went to see General Mulqueen (FSSG CG) to personally urge him to set it aside, and to his credit the CG did so.  Captain Dave Moye was the DC and he did a terrific job in that case.   

  13. Atticus says:

    One more reason to adopt a rule patterned after Rule 29(c) of the FRCP.  It allows the defendant to move for judgment of acquittal within 14 days after the verdict.  I don’t read RCM 917 as allowing that and actually tried to do it when I was a judge and discovered I had no authority to do it after findings had been entered; See 917(a).  A version of FRCP 29(c) adopted within 917 would allow the defense to relitigate the trial like ADC does now under the factual insufficiency test and if successful would get the accused out of confinement much sooner.  Moreover, in a case where there is not going to be Art 66 review, it woudl be the accused’s only means of relief, outside clemency which as everyone knows is extremely rare.

  14. Anonymous Air Force Senior Defense Counsel with the initials NM says:

    I have to say this is worst case for everybody.  If we’re not going to believe a CW, then why make her go through all this?  If the CA has such little faith in the rulings of the MJ and their effect on the reliability of the trial’s outcome, then again, why make the CW go through this whole trial?  Big picture-wise, this whole thing gives the appearance that the JAGC and the CAs they represent are not on the same page.
    IMHO – if a CA isn’t going to approve a conviction, then there ought to be a way to figure that out before the trial.

  15. k fischer says:

    Stewie, 
     
    I agree with you.  I don’t really know what caused this case to get referred, but this convening authority is doing an incredibly courageous thing by dismissing the charge.  I admit that I know as much as Nancy Parrish why this case was tried and got dismissed…..which is nothing.  
     
    I wonder if deep down inside the dismissal of charges has made Ms. Parrish truly outraged or if she is tickled pink that the dismissal fits snuggly into the narrative that Protect Our Defenders, SWANN, Military Rape Crisis Center, and RAINN have to justify their opinion that civilians should control military justice cases involving sexual assault.

  16. Charlie Gittins says:

    Anonymous:  THere once was a day when Article 32s were done to test the evidence.  IN those long ago days, IOs would provide their recommendations without fear of backlash from the victims’ advocate’s lobby.  And, SJAs would have the courage to tell CA’s that there’s no beef to the allegation and the CA’s would dismiss weak cases that they did not believe could be proved.  Now, the Victim’s lobby has sufficiently coerced military leaders that to cover themselves, no matter how weak the case, they send it to trial and “let the jury sort it out.”  That is not really “justice.”  In the real world, prosecutors are required to dismiss charges that they do not believe can be proved beyond a reasonable doubt.  Since prosecutors in the military have no such independent authority, they are pawns in the system. 
    I recall during the unsuccessful Tailhook prosecutions, one prosecutor, whose name escapes me, refused to take to court (GCM) a case he did not believe could be proved beyond a reasonable doubt.  He was fired, the case went forward, and as we all know, there were no successful prosecutions arising out of Tailhook.  Where were the Rules Counsel then?     

  17. U says:


    I am happy to know the military can waste my tax dollars on something like this.  The entire MJ system is broken…..goes to show if you have friends in the right places anything goes.
     
     
     

  18. U says:

    Round 1 of the budget cuts should start with the JAG Corps…. It is evident from this case that their services are not necessary.

  19. Bill C says:

    Charlie: I had a 120 case dismissed after the 32 recently, and another one dismissed on the eve of trial, but as you and I both know these are few and far between.   Both of these SJA’s deserved credit for having the guts to do the right thing, as does this CA.   I wonder if it will effect his career? 

  20. AF Capt says:

    “one prosecutor, whose name escapes me, refused to take to court (GCM) a case he did not believe could be proved beyond a reasonable doubt.”
    Yet this is not the standard to be used…  ABA Model Rule of Professional Conduct 3.8 clearly states that the standard is “not supported by probable cause”.  Obviously the military rules are a bit different since discretion is vested in the CMCA and not trial counsel.  However, the services’ RPC 3.8 still mirror the ABA duty in effect (and therefore, presumably, in the burden of persuasion): TC shall “recommend that the convening authority withdraw any charge or specification not warranted by the evidence”.

  21. Atticus says:

    AF Capt:  I was a TC/MJO in the Marine Corps for six years.  I never even preferred a charge in the first place if it was “not warranted by the evidence.”  It seems to me the rule you cite needs to be redrafted to move that ethical obligation forward.  It never gets to the point of going to the CA if you do not prefer it at all.

  22. AF Capt says:

    Atticus:  I wouldn’t be opposed to that, although if it is meant to mirror the ABA’s guidance on prosecutorial discretion it would make sense to keep it at the point where CMCA’s most exercise that discretion.  (Since, technically, if not in common practice, anyone can prefer charges).

  23. Phil Cave says:

    Attitcus,
    There is an equivalent to a federal motion for a judgement of acquittal.  I have used it successfully in the past for cases where members find guilt.
    The basis is found in United States v. Griffiths.  That’s the Griffiths motion I have referred to at various times in the past.

  24. N says:

    Charlie: Interested in your experience, mine has been that 32’s are still used to kill a lot of bad cases. I’m curious to hear that this isn’t widespread.

  25. k fischer says:

    Does anyone know what the SJA’s PTR was?  If the CA follow the SJA’s advice, then it wasn’t a pilot taking care of another pilot and the dismissal is a lot more credible.

  26. Phil Cave says:

    United States v. Griffith, my trial notebook has this entry.
    The Court of Military Appeals has recently reiterated its position that, under certain circumstances, the MJ may set aside a finding of guilty after announcement.  See United States v. Scaff, 29 M.J. 60 (C.M.A. 1989); United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).
    Keep in mind that the evidentiary standard is essentially that of CAAF, not of a CCA — .
    In Griffith, CMA said:
    Consistent with our conclusion in Brickey and in other cases that Congress intended for a military judge to have the power to conduct post-trial proceedings until authentication of the record has taken place, we are convinced that if, before authenticating the record of trial, a military judge becomes aware of an error which has prejudiced the rights of the accused — whether this error involves jury misconduct, misleading instructions, or insufficient evidence — he may take remedial action on behalf of the accused without awaiting an order therefor by an appellate court.  (Emphasis in original.)
    Appellate defense counsel argue that the military judge not only has the power to rule after trial on the legal sufficiency of the evidence — as is permitted in Federal trials by Fed.R.Crim.P. 29 — but also may set aside findings of guilty after trial if he determines that they are against the weight of the evidence. Although Fed.R.Crim.P. 33 apparently allows Federal District judges to take such action, we are unconvinced that a military judge may become the “thirteenth juror” in this manner. Instead, as we interpret the military judge’s responsibilities under the Code, he may determine only whether the rights of an accused have been prejudiced by legal error — such as legal insufficiency of the government evidence — and may not decide the credibility of the witnesses. 

  27. Charlie Gittins says:

    My most recent experience which now is not so recent was US v. Stewart in 2009.  Fairfax County would have nothing to do with the case — no fresh complaint.  Article 32 goes pretty well for the defense and we had a Virginia Commonwealth’s attorney COL USMCR as the IO (decidedly NOT defense friendly).  He recommends the charge and specifications be dismissed.  SJA recommends trial over the IO recommendatio — he was looking to be promoted — and the CA referred.  Client was convicted; case overturned on appeal by CAAF on double jeopardy grounds — two specifications alleging the same conduct two different ways and the members acquitted on spec 1 and convicted on spec 2 after (according to their instructions) voting on spec 1.  This issue had been raaised as an objection to the form of the charges in the 32 and re-raise before two MJs prior to trial.  No love until CAAF and the client spent a yr of hislife in jail (before release by the NPB). 
    I had great success in getting crap charges dismissed throughout my practice — particularly sex assault after the 32.  I think that worm has turned.   

  28. Ex TC says:

    Not sending bad cases to Article 32’s will also increase the Govt’s position in other cases. I fought very hard to keep crap sex assaults from being preferred as a TC and when CA’s waivered I brought in our CO to kill it. So when the defense got a sex assault case the 32 was more a procedural road bump bc it was strong case that no reasonable 32 officer or CA would reject.  It takes an honest professional evaluation of a case and if you can’t stand up to the CA and their often lackey SJA’s then do legal assistance and get out. Don’t ruin it for the rest of us that try to do the right thing. 

  29. Captain Haddock says:

    Charlie, I have had two Article 32’s in the last three months in which the IO recommended no further action and the SJA and I concurred, resulting in the CA dismissing the charges.  I also very recently had a conviction and solid sentence in a case in which the IO (a reservist AUSA) argued passionately against moving forward.  Sometimes IO’s are spot on; sometimes they’re wrong.

  30. stewie says:

    What is a “strong” sexual assault case?  Because by definition he-said/she-said are almost invariably not “strong” cases.  We rarely get sexual assault cases where there is DNA or witnesses or a confession.  Should we only send those forward? Because I think everyone here would agree at least SOME of those he-said/she-saids are in fact legit cases.
     
    Do we only send forward the ones with the “good” alleged victims?  Again, I recognize that alleged victims can lie.  Seen it with my own eyes on both sides. I do not buy the 2 percent false confession malarkey (although neither do I buy the 40 percent false confession malarkey). 
     
    So I think one’s definition of a “crap” or “strong” sexual assault case is rather more subjective than objective which is why they go to trial more often than I suspect some like, and I think it’s more about that then someone wanting to get promoted, or lack of courage, or any of the other ad hominems that folks seem to throw out.

  31. k fischer says:

    Maybe Nancy Parrish has a point.  Here’s a case where the military dropped the ball and let a serial rapist go with a less than honorable discharge in 2006. 
    http://www.mercurynews.com/central-coast/ci_22689193/court-martial-jeremy-goulet-following-alleged-rapes-hawaii
     

  32. Tami says:

    Takes guts to do the right thing in the face of political pressure to keep doing the wrong thing.

  33. k fischer says:

    “Franklin, the authority who convened the court-martial, had concluded in his post-trial review that the evidence did not prove Wilkerson’s guilt beyond a reasonable doubt, according to a Third Air Force statement. The decision was contrary to the recommendation of his staff legal adviser.”
     
    http://www.stripes.com/news/air-force-pilot-s-sex-assault-dismissal-sparks-cries-for-reform-1.210371#disqus_thread
     
    I’d feel a lot better about the decision if the SJA had recommended dismissal….but, then again, I don’t know why the CA dismissed the charge.  

  34. skipper says:

    Since the plaintiff in this case does not have the right of appeal in the military courts any longer, does the plaintiff have the right as a civilian to sue the defendant for damages in a civilian court or is the defendant protected under military law?

  35. skipper says:

    Is the ca always advised by an impartial legal team in his decisions and if so, there would have to be a serious reason for him to ignore both the verdict of the courts and the advice of his legal team?  

  36. skipper says:

    While I can see why many of you would be opposed to having politicians interfering in the military justice system, what is wrong with asking the ca to explain his reasons for making the decision to dismiss the case?

  37. skipper says:

    I am not a lawyer, victims rights advocate and I do not know any of the people involved in this case.  Looking at your comments it would seem that there is a division amongst prosecutors and defense attorneys regarding the fairness of this system of justice and the system seems to be unduly slanted in favor of the defense. To make the system completely impartial, wouldn’t it be better to take it out of the hands of the ca and put into the hands of an independent committee to make the final decision?

  38. skipper says:

    As I have said, I am not a lawyer.  The ability of one person to circumvent an entire legal system smacks everyone in the face who believe in that system with an intolerable arrogance.  Do I think the legal system is perfect? By no means. It is, however faulty, setup to protect the rights of all though.  By allowing one person, however worthy, to circumvent the system you in essence destroy the purpose of that system.  Why bother to have the system at all?  Do I think this CA’s decision was correct? I don’t know and none of us will ever know, will we?  This is a slap in the face to everyone who puts their faith in a legal system that is supposed to protect the rights of all.  It makes a mockery of that legal system and the lawyers who work within that system.  Just something to think about and my own opinion of course.

  39. Anti Law says:

            I am not a lawyer and I was not at this trial but I have served the military for many years. In that time I have seen numerous Soldiers sent to trial. Even with a lack of evidence for conviction the SJA will go to trial being influenced by the Chain of Command or outside sources.  Especially for any crime involving a male on female regardless of the evidence, the male is thougt to be guilty before being proven innocent.
            If these trials of he said she said were to go to a civilain court it would never hit the docket.  That being said according to the Stars and Stripes newspaper. The only reason for conviction was the testimony from the victim and the prosecution that said basically ” Why would she llie?” No other hard evidence.  The defense was not allowed to bring to light evidence as to character of the victim of possible untruthfulness that was denied by the Judge. Then why is the Congress men and Congress women who are mostly lawyers getting involved in a case that possibly should never have been? What constitutes beyond all reasonable doubt because if all it takes are accusations in the military for a conviction. Seems a bit scary for the young soldiers today.

  40. skipper says:

    Any system of justice should serve only justice and not any other master. You can’t serve two masters and still have true justice.

  41. skipper says:

    You either serve justice or allow justice to be raped by whatever the ca may decide.  Did you get your law degrees to serve justice or to serve the military? This case, although exceptional, is a prime example of why you can’t serve both and stay true to justice.