Thanks to an alert reader for calling our attention to this link to Lieutenant General Franklin’s memo to the Secretary of the Air Force explaining why he set aside the findings in the case of Lieutenant Colonel Wilkerson.

The memo is also posted on the Air Force FOIA electronic reading room web page here.

61 Responses to “Link to Lieutenant General Franklin’s memo explaining his action setting aside the findings in United States v. Wilkerson”

  1. Zachary Spilman says:

    Obviously it would have been exceedingly less volatile for the Air Force and for me professionally, to have simply approved the finding of guilty. This would have been an act of cowardice on my part and a breach of my integrity. As I have previously stated, after considering all matters in the entire record of trial, I hold a genuine and reasonable doubt that Lt Col Wilkerson committed the crime of sexual assault. As a result, I would have been entirely remiss in my sworn military duty and responsibility as a GCMCA if I did not release someone from prison whose guilt I did not find proven beyond a reasonable doubt. Accordingly, I knew that my court-martial action to disapprove findings and to dismiss the charges was the right, the just, and the only thing to do.

    Bravo Sir. Wherever you’re going, I’ll happily follow.

  2. Dew_Process says:

    Dang Z, you beat me to the punch!  I was going to quote that exact same passage – and exact same sentiments.  Just sending the letter to SecAF took a mighty big pair of stones!

  3. Ray Beal says:

    General Franklin is a real hero. The epitome of moral courage. 

  4. Phil Cave says:

    Moral courage, aye!

  5. CONUS AF Capt says:

    But also at least a little inconsistent…
    “I am fully aware of and considered the polygraph results. As you are aware in a criminal investigation, a polygraph is only an investigative tool to assist in the potential focus of the investigation and/or to attempt to elicit admissions of guilt. It is not a “lie-detector test,” nor is it “pass” or “fail.” Because of the inherent unreliability of polygraphs, they are entirely inadmissible in a court-martial.”
    (Assumption drawn from this — being too busy I haven’t followed this terribly closely — Lt Col Wilkerson failed the poly.)
    “One particular witness was not allowed to testify in court. The primary rationale was that the applicable events of which she had knowledge in regard to the character and truthfulness of the alleged victim occurred 10 years earlier (when the alleged victim was approximately 39 years of age). I reviewed this excluded testimony, as well as the clemency letter of this witness which detailed court proceedings that involved the alleged victim 10 years earlier.”
    Our rules of evidence and case law drawn from them exclude evidence when its not reliable.  That’s why polygraphs get tossed.  It’s also why some character evidence gets tossed.  The GCMCA seems to follow that some of the time (the poly) but not others (the character evidence).  It’s worth keeping in mind… along with the fact that reading transcripts is not the same as witnessing testimony first hand.

  6. ConLaw says:

    Moral courage to some is bad PR to most.  This is re-litigating the conviction and will speed up, not slow down, this congress abolishing clemency authority.

  7. Ed says:

    Is ConlLaw saying that doing the right thing should be subordinted to PR?I don’t buy that.

  8. OPLAW-LCDR says:

    Outstanding. I agree with Zack – that last paragraph says it all. It seems to me that the cowards are those who want to remove this unique and necessary power. This commander had the personal courage to do what was right, consequences be damned. Somehow I suspect he knows he has signed his own career death warrant. Thats a sad comment on our current state of affairs.
    CONUS: it seems to me that the apparent inconsistency is also irrelevant. The CA is not bound by the Rules of Evidence, and for good reason. The clemency power goes far outside those Rules, and can just as easily be used against the accused. I would also point out that when it comes to transcripts, the service CCA, which actually has a duty to read the whole record – something we all know is exceedingly rare for a CA to personally do – has exactly the same difference to deal with, yet the UCMJ expressly requires them to pass on both law and fact. In fact, the record isn’t quite so cold for the CA as it is for the service CCA, because the flag may know some or all of the people involved.
    LTG Franklin has done us all a service here, I think. Command is an awesome responsibility, and I question how anyone who has never had that responsibility can decry his decision, nor advocate to take away the power of the commander to see that good order and discipline – for everyone in the command, including an accused – is upheld. That is why we have a UCMJ, and why it is different from the civilian system.

  9. Devin Winklosky says:

    I think it’s too late to save Article 60 in its current form. In light of this pending change, perhaps we ought to give  some thought to enhancing the Article 32 investigation so that the IO and/or SJA and/or CA can say things like General Franklin said before the case is referred for trial.  It’s tough on the system when a CA suggests after a conviction that he shouldn’t have sent the case to trial in the first place.  It begs the questions whether CAs are now conditioned to send every case like this to trial and, more dangerously, whether members are conditioned to convict in such cases (are they unconsciously diluting the beyond a reasonable doubt standard)?

  10. stewie says:

    couple of thoughts:
    1. I do not think one is a “coward” because they want to remove or change Article 60 authority.  That’s, with all due respect, ridiculous.  Now, one can fairly argue that they may be wrong, but that doesn’t make them cowards.
    2. I concur the General showed personal courage.  Of course, one can be personally courageous…and wrong.  So, while we applaud the former, we should not be afraid to examine the latter.
    3.  I don’t think the argument that you can only question a commander’s decision if you too have been in command makes much sense logically.  Of course you can.  The only requirement is that you make allowances for that fact, not you simply defer to him as if he were COL Jessup.

  11. Mike says:

    He talks a lot about probable cause.  Isn’t the standard for whether to refer a case “reasonable grounds”? That is what it says in 406 and 601.  Only one of the comments mentions probable cause if I recall correctly from my TC days.  In any event – that is a lot of military rhetoric by the GCMCA.  Trial by jury is a sacred right.  It is disturbing that one government official has the ability to pencil whip a jury verdict into oblivion.  
    I am a big believer in granting ultimate authority in the MJ system to commanders.  But when you get a dummy commander (notwithstanding his personal courage) like this bozo, it draws the kind of scrutiny that will continue to whittle away at command authority.  

  12. Tami says:

    CONUS AF Capt.,
    I disagree about the inconsistency in considering excluded character evidence but not considering the polygraph results.  The rules allow character evidence to come in, if Franklin was convinced the judge was wrong in keeping it out, then I think it was OK for Franklin to consider it.  But the rules do not allow polygraph results to come in, period.

  13. Dwight Sullivan says:

    Mike, of course, Lt Col Wilkerson didn’t have a trial by a jury; he had a trial by 5 members who were not required to render their verdict unanimously — something that isn’t possible in a jury trial. 

  14. Anon says:

    Ultimately, Lt Col Wilkerson had a trial by one person who acknowledges that he had a strong preconception prior to his deliberations and spent three weeks sifting through the evidence to find things that, miraculously enough, supported his preconceived opinion.  And, of course, that preconceived opinion was that a senior military member, married with a child, would never sexually assault anyone.  Still believing that is cute… like a child who believes that all teachers are great, all priests are pure good, and all adults are trustworthy.
    Incidentally, how about that light bulb?  From the memo, it sounds like there was a single light-saving bulb that brightens that slowly in the house and it just happened to be in the room where the alleged attack might have happened?
    And yes, polygraphs are inherently unreliable.  But Wilkerson would’ve pointed to it as “proof” of his innocence had he passed.  And we use them all the time in determining who to grant access to our nation’s secrets.  Polygraphs are prohibited because we used them as definitive proof of lying in the past and now the danger of that preconceived notion affecting justice means we keep them out entirely.  But that doesn’t make them of less value in determining truth than a statement from someone that 10 years ago the victim acted in a way that might have led her to lie.

  15. SFC V says:

    Why did he refer it to trial in the first place?  All of the information that he based his decision on should have been available to the CA and SJA before refering the case to trial.  If it’s a bad case you need to exercise discretion before we spend resources trying the case. 
    If the alleged victim isn’t credible that needs to be accounted for early on in the process and not after trial.  It takes a great deal more courage to look a complaining witness in the eye and tell them they are not credible than to go this route. 

  16. Mike says:

    Dwight, I am a long time follower of the CAAFLOG.  Big fan.
    I believe there are other jurisdictions where unanimity is not required for a verdict in a felony case, right?  The requirement of a unanimous verdict is not what makes the right to a trial by “jury” (or panel) important.  It is the fact that members of the accused’s and victim’s community, and NOT a government official, are charged with making the factual findings and ultimately determining guilt.  Whether a jury or a panel – the essential screw up here was that a government official used his power of clemency to undermine the process.  That, in turn, looks like it will have an adverse impact on the commanders’ ability to maintain command over their fighting force.

  17. Christopher Mathews says:

    I hope there are no permanent stains on the flag the general wrapped himself in.

  18. Anon says:

    As I think about it more, isn’t this case a perfect example of why this kind of review is a bad idea?
    Arguably, this is the process working, right?  This is what is supposed to happen in meritorious cases under the rule.  A GCMCA is supposed to be permit the defense to relitigate everything; to revisit rulings that didn’t work; to insert evidence more prejudicial than probative; and, after all that, the GCMCA is supposed to spend three weeks sifting through the evidence to see whether his hunch that the accused should have been found not guilty is right.
    Because, let’s face it:  if the GCMCA doesn’t suspect this guy should’ve been not guilty, is he really going to put three weeks of effort into making that decision?  These guys make life-and-death decisions on the basis of a couple PowerPoint slides or a bullet background paper.  But, as every JAG knows, tell them something can’t happen the way they want and suddenly they want to read everything. 
    Maybe I’m in the minority on this fine site, but this doesn’t sound appealling to me.  We have all these procedures and spend all this time working to ensure that we provide a fair trial, that we protect the integrity of witnesses, that we keep out evidence that is more prejudicial than probative.  That we don’t put the victim on trial.  And then we have this rule that’s sole purpose is to negate all of that if the GCMCA really wants to?
    And then this memo… nice way to tell other victims that, if you allege an assault by a high-ranking officer then first know, he probably won’t be convicted.  And, if he is, the GCMCA may not only overturn that verdict, but may also draft a detailed memorandum about how you’re untrustworthy that gets published to the world.
    And we get to tell panel members that, while we’d be up in arms if the GCMCA published an opinion criticizing a verdict of “Not Guilty,” he is perfectly within his rights (courageous even) to openly criticize a Guilty verdict.  Panels were gun-shy before.  I’d love to see a study of panel behavior post-Wilkerson.

  19. Anon says:

    And trial counsel get called out for selective presentation of OSI interviews, which when viewed in their entirety allegedly tell a different story?  If I’m a trial counsel, I’m asking about this memo in voir dire.  After all, how often do members have a general openly state that trial counsel painted a misleading picture by keeping out evidence in order to gain a conviction in a weak case?

  20. Dwight Sullivan says:

    Mike, Lt Col Wilkerson was convicted by a five-member panel; ony four votes were necessary for his conviction.  The Supreme Court has held that it’s unconstitutional to have a five-member jury in a criminal case.  Ballew v. Georgia, 435 U.S. 223 (1978).  The decision was based, in part, on concerns over the consistency and reliability of juries with fewer than five members.  Id. at 235.  The Supreme Court has also held that it is unconsititutional to have a six-member jury render a non-unanimous verdict.  Burch v. Louisiana, 441 U.S. 130 (1979).  (On the other hand, the Supreme Court has upheld 10-2 and 9-3 jury verdicts in criminal cases.  Johnson v. Louisiana, 405 U.S. 356 (1972) (9-3); Apodaca v. Oregon, 406 U.S> 404 (1972) (10-2.)).  The Supremes held that a six-member jury with a non-unanimous verdict fails to preserve the substance of the jury trial right.  Burch, 441 U.S. at 137.  The Court held that such a jury “threaten[s] the fairness of the proceeding.”  Id. at 138.

    So had Lt Col Wilkerson been tried by a jury, the votes of at least one more — and possibly two more, depending on what the members’ vote was (something we don’t know and aren’t allowed to know — people would have been necessary to convict as a matter of constitutional law.  Had he been tried by a federal jury or a jury in almost every state, the votes of at least 7 more people (and maybe 8 people) would have been necessary to convict.

    Lt Col Wilkerson wasn’t tried by a jury.  He wasn’t tried by a group that contains some of the fundamental aspects of a what a jury is.  The military departs from the jury right and also allows a CA to overturn a conviction.  Now there are proposals to overturn the latter protection, but I haven’t heard proposals to overturn the former departure from the civilian norm.  One of my concerns is that all of the reform proposals seem to be going in one direction, without considering why, in some areas, we give a military accused more protections than his or her civilian counterpart, often to balance some other part of the system that provides the accused with less protection.

  21. ResIpsaLoquitur says:

    Knowing what we know, if the panel had returned a “not guilty” verdict, would we be disappointed that it turned out that way?  Or would we, at a minimum, say “Well, that’s their purview”?  I agree that as a theoretical matter, diffusing power among five people creates less risk of abuse than centralizing it in one.  But the possibility that something went wrong doesn’t mean that it did here.  The panel had their authority, and the CA had his.  I can’t bring myself to call this an abuse of discretion here.
    Plus, if we are worried about this CA abusing his authority, we always have the option of the next highest commander withholding the lower one’s GCMCA authority, either in all cases or sexual assault ones.  There is an existing check and balance which doesn’t require the elimination of Article 60.

  22. TC says:

    Some of the evidence on which he based his decision is just so uncompelling.
    -She couldn’t identify which bedroom she’d slept in.  So what?  We know she slept there, as both the accused and his wife testified.
    -She couldn’t explain how she left the house.  Again, so what?  Does the CA believe that means she was never actually there?
    -She didn’t know if her assaulter had a moustache.  If the CA believes the discrepancies between the accused’s story and his wife’s story show they’re not making this up, doesn’t her willingness to admit this fact show the same thing?  Or does the CA believe that she was assaulted, just not by the accused?
    -Neither child heard the accused’s wife yell “get out of my house.”  But didn’t the wife say the victim was being loud and belligerent, and was therefore asked to leave?  Did they hear that?
    -She turned down multiple offers for a ride.  What does that show?  It doesn’t sound like the defense argued this was consensual.  Maybe the theory was that she wanted something to happen with the accused, but that’s certainly not clear from this memo.  And if that wasn’t the theory, what does this issue with the rides tell us?
    I agree that the CA’s actions took courage, and I have no idea if the accused is or is not guilty, but when these are some of the points used to justify the CA’s action to the service secretary, I can’t help but be unconvinced that this was the right decision.

  23. Winston says:

    Dwight, Don’t forget to note the other side of the panel vs jury debate.  It only would have taken 2 individuals to vote not guilty for Lt Col Wilkerson to have been acquitted outright.  It’s not all bad for the defense that an unanimous vote is not required.  In fact, I’ve found that many civilian defense attorneys initial rebuff to a non-unanimous panel for conviction quickly fades when they hear they only have to convince a couple panel members to vote not guilty to obtain a forever binding acquittal.
    Also don’t forget the panel vs jury debate must include Art 25’s direction to select those “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”  While it’s an open question whether that happens in every case, I am convinced a panel is routinely “smarter” than a jury.  As it applies here, Lt Col Wilkerson’s panel would have had senior officers who each had college degrees (and likely more) with over 20 years of military experience.  I feel 5 such officers of the “panel” probably came to the right result.
    I read with great interest Lt Gen Franklin’s memo and, in my humble opinion, don’t believe it answers the mail sufficiently for the decision he made.  Look sexual assaults, especially he-said/she-said, are almost always tough cases.  I respect Lt Gen Franklin’s courage to make the decision he did, especially as I am sure he did so knowing his career would be effectively over with the oncoming public outcry.  I don’t agree with it, but I respect it and am sure he’ll do just fine with his General’s pension and DoD contractor job he’ll pick up in retirement.
    What I fear is that this one case will cause profound changes to the military justice system.  A system, which like was once said about democracy, is the worst system of military justice except all the others that have been tried.  Sure some tinkering is needed around the fringes to make it better, but not the wholesale changes that might be on the not-so-distant horizon.  For those in favor of such wholesale changes, be careful what you wish for…

  24. CONUS AF Capt says:

    @Tami: My assumption is that the judge, who was in a better position by training and hearing the profferred testimony, made a correct determination as to how the MREs applied.  The Military Commander and the Law is good, but it’s no law degree + years of litigation experience.
    One thing that has gone unsaid is the standard Lt Gen Franklin ought to have applied.  He didn’t base his judgment on grounds of fairness (e.g., rights were violated) but on a flat determination that the events did not happen.  In appellate review the facts would only be overturned if clearly erroneous.  Is there really evidence to say as much?  If its not clearly erroneous, what is it?  If there are no definite standards, how are we not in the realm of ipse dixit? 

  25. DefenseFriendly says:

    Mr. Sullivan brings up an essential point–court-martial panels are not juries.  Generally, they are comprised of individuals subject to command of the CA.  It is reasonable to conclude that these members–who were assigned to a court convened by the CA–probably feel reluctance to find a person not guilty in a case their commander referred to trial.  The CA’s clemency power is an effective–and necessary–method of hedging against what may be the feeling of certain panel members that they must return a guilty verdict.  Of course, there are acquittals and partial acquittals in the military justice system, but the latent concern of command influence surely justifies the ability of a CA to correct a finding that may have been made based on a desire to secure that CA’s approval.
    As a side note, Mike’s comment that Lt Gen Franklin is a “bozo” is surely uncalled for.  I know and have worked for Lt Gen Franklin on the TC side–never have I met a commander so concerned about justice for both the victim and offender.  I am familiar with many cases concerning crimes across a range of severity and concerning airmen of all ranks where he took the time to review a ROT and make a thoughtful, reasoned, judgment.  While people may disagree about his conclusion in this case, he certainly is not a “bozo.” 

  26. Dwight Sullivan says:

    Winston, in civilian practice, a hung juy in a criminal case is almost always considered a defense win.  And it’s easy to understand why.  At the end of the trial, the defendant is still in the same position that he or she was in before the trial.  So saying that in the military, some results that wuold be a hung jury in a civilian trial are an acquittal is little solace to offset the more significant point that some results that would be a hung jury in a civilian setting are a conviction.  It is a simple fact that, given the military’s panel size and voting ratio requirements, it’s easier to get a conviction in a court-martial than in a civilian criminal trial.  We have no idea whether Lt Col Wilkerson would have been convicted if courts-martial followed Supreme Court case law on the right to a jury trial.  It doesn’t seem inappropriate to me to provide an accused who is convicted with some additional protections due to the absence of the protections provided by a six-person minimum jury and proscription against non-unanimous verdicts where the panel size is six or less.

  27. Mack says:

    @DefenseFriendly:  If Lt Gen Franklin is effectively telling everyone in his memo that he referred to GCM with the expectation that the accused be found not guilty, doesn’t that diminish, if not negate, the suggestion that there’s pressure to convict?  Not to mention the comment above that a panel member can only be publicly criticized for returning a guilty verdict.  When it only takes a few to render the NG verdict, do you actually think an isolated juror is worrying that, if he votes to acquit, the CDR will be angry with him?

  28. publius says:

    Lt Gen Franklin remarks that he “hold(s) a genuine and reasonable doubt that Lt Col Wilkerson committed the crime of sexual assault.”
    That’s fine, if he had been a member of the panel. But as CA?  Is “reasonable doubt” the CA’s standard of review?  Does the CA have a standard of review?

  29. Dwight Sullivan says:

    CONUS AF Capt, the Courts of Criminal Appeals actually apply a de novo standard of review when conducting a factual sufficiency review. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2003). The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the CCA is convinced of the accused’s guilt beyond a reasonable doubt.  United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

  30. whyprosecute? says:

    According to most of the logic in these comments, (1) courts-martial with panels are akin to kangaroo courts because there’s unlawful command influence (read: panels feel they must convict because the case has been referred by a Commander), and (2) rapists are never doting fathers and loving husbands.  Of course, the first flies in the face of many courts-martial where the Accused is found innocent despite referral by the GCMCA.  I suppose many of you believe that, in those cases, the GCMCA slipped a note into the case files received by panel members saying, “I referred this case to you to waste your time; find the Accused innocent!” As for the second point, it appears your beloved LTG (and likely many of those commenting here) believe that rapists have horns, jump out of bushes, and typically wear t-shirts proclaiming, “Rapist.”  Alas, that is not the case.  In truth, the LTG gave every benefit of the doubt to the LTC and his wife (see: graciously noting that it had been 3 1/2 weeks since the incident, so it made since that the LTC and his wife would forget a few things and have some inconsistencies in their testimony), while holding the victim’s feet to the fire (she had to be lying! because, though it was the first time into the house and had only just met the LTC and his wife, she couldn’t remember the exact layout of the house. GOTCHA!)  The LTG is a clown and ought to be admonished.  His reasoning is preposterous throughout.  Even if the panel and judge got it wrong, the LTC is ENTITLED to an automatic appeal.  The legal process would have given him a second chance.  The LTC didn’t need and didn’t deserve (certainly not on the account of 91 well-written letters penned by friends (who certainly have never seen their friend act rapey)) clemency by the LTG.  The LTG, by trying to justify his rationale, comes across as a baffoon — especially since he tries to couch his decision in “moral courage.” Kim Jung Un also believes he’s acting with moral courage in threatening South Korea.  Not all things done under the mantle of moral courage are defensible and certainly not the behavior of the LTG in this case.  Absurd.

  31. Mack says:

    Dwight,  isn’t the liberal grant mandate the device used to protect accuseds in front of panels?  Most panels don’t start out that size.  And, but for the LGM, most wouldn’t end up that size.  Especially when you’ve got O-5 accuseds… I seem to recall a case a couple years ago where the defense successfully challenged >20 O-5s and O-6s, exhausting the base’s supply and forcing a transfer to another installation.  Requiring any more than six members and you might never find a panel.

  32. That Guy says:

    Did I miss anyone discuss the Good Soldier Defense and whether this case could be a catalyst to limit its applicability? I think it you look at the CA’s reasoning, he has doubts to the evidence, then doubts to some evidence not heard by the fact finder PLUS this is “a selectee for promotion to full colonel, a wing inspector general, a career officer and described as a doting father and husband” who left all that to assault someone he just met. Sounds like a little GSD played a role as well into the CA’s decision.

  33. CONUS AF Capt says:

    @Dwight Sullivan:  Thanks for the clarification, sir!  Once you mentioned that it tickled a little bit of information loose from my JASOC visit to AFCCA saying the same.  I had forgotten that was one of the things to the CCAs.
    @whyprosecute?: Calm down!  Comparisons to Kim Jung Un come pretty close to triggering Godwin’s Law.

  34. Winston says:

    Dwight, I would agree a hung jury is a win unless the individual is retried.  Then that’s most surely not a win.  Plus the possibility of a retrial does not exist in the military in such a circumstance since they would just be found not guilty.  Knowing that the stress of awaiting trial for some of my former clients was far worse than the actual trial or punishment, I’d venture that they “might not” get retried would provide them little solace when weighed against the possibility that they “might” get retried.  So while they might be in the same position as before trial, I’m not so sure that’s a good position.  Applied to military prosecutions – let’s say the system allowed hung panels and retrial.  I’m guessing there would be more retrials here than in the civilian system.  The Government tends to keep pursuing things long after economy and common sense dictates otherwise.   
    We’ll have to agree to disagree that it’s a “simple fact” that it’s easier to get a conviction in a court-martial than in a civilian criminal trial.  I’ve never bought into that whole “numbers game” theory because at the end of the day we are dealing with people and conjecture about what goes on during deliberations.  For whenever you successfully remove a panel member for cause or on peremptory, you never know if you just took off the one panel member who would have successfully sold you case to the rest of the panel during deliberations.  
    You do bring up a good point about panel size requirements.  I am not adverse whatsoever to larger panels as I think more voices will enhance a healthy deliberative debate.  But as soon as you increase the size you have to open the debate about how many is too many and at what cost to military readiness by having to draw so many members in for a single court-martial.  How many panel members would be enough for you? 
    I am not against additional protections whatsoever.  There always need to be a balance for fairness sake.  For instance, I believe we should abolish the practice of a subjurisdictional sentence.  For SPCM and GCM cases that would be currently considered subjurisdictional, I believe every accused should have an appellate counsel assist them such they can request the CCA review it (to include any Grostefan issues).  If they so request, then the CCA must review it.  If they choose not to raise any issues, then no review is required (i.e., submission on the merits would not require review for what are currently considered subjurisdictional sentences).  My question to you is: which additional protections do you think are necessary because of the reduced panel size and proscription against non-unanimous verdicts?

  35. Lieber says:

    this ltr was bullcrap.  comes down to being a good Airman thing.  bogus.
    oh and spare me the moral courage claptrap.  you’re ticking me off.  I’m sure this LTG has spent three weeks before scrutizining the guilty verdict for an E-3.  yeah right.  we all know that isn’t true.
    moral courage would be doing that in the case of an E-3 with bad character (but innocent of the charges), not in the case of an O-5 with a zillion high-ranking friends.  spare me.
    what this only proves is that if you’re high-ranking enough the rules change for you. (in practice, not formally)

  36. whyprosecute? says:

    CONUS AF Capt: “It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd'” (credit to Justice Scalia, the round mound of doom).  Triggering Godwin’s Law may make you feel internet saavy, but it doesn’t bolster your positions.

  37. ResIpsaLoquitur says:

    It’s getting a little heavy on the snark, guys.  I’m no moderator, but you may want to calm it down.  You never know who you’ll work with someday.
    “Hey Colonel, you should have seen me school this asshat on CAAFLog who was defended that Lt General…”
    “That was me, captain.”  (Pulls out standard LOR template.)

  38. Dwight Sullivan says:

    Winston, a civilian criminal jury of six members cannot convict (or acquit) unless that jury returns a unanimous verdict (and most can’t convict or acquit without a unanimous 12-member vote).  A five-member military court-martial panel can convict upon a 4-1 vote.  I think few people would dispute that it is easier to obtain a conviction in the latter system (4-1 vote necessary to convict) than in the former system (6-0 vote necessary to convict).  In evaluating the relative value of a hung jury with possibility of retrial vs. conviction, it’s important to remember the increasingly significant collateral consequences of a court-martial conviction.  Whatever the anxiety an accused may suffer going through a second court-martial, it’s difficult to believe that it outweighs the punishment immediately resulting from a court-martial conviction plus the life-long stigmatization that follows.

  39. whyprosecute? says:

    Seems it would come as a surprise to some of you that non-military members would monitor this blog.

  40. k fischer says:

    To begin, this was the most difficult ·court case that I have ever faced as a convening authority.
    The case was comprised of mostly consistent testimonies of a husband and wife in contrast to the
    testimony of an alleged victim. There was no confession or admission of guilt by the accused
    and no physical evidence. I even struggled with referring this case to a court-martial after
    reviewing the results of the Article 32 Investigation. As you know, the evidentiary standard of
    probable cause to refer charges to a court-martial is much less than the very high standard of
    proof beyond a reasonable doubt to convict in a court-martial. Consequently, after my review of
    the evidence within the Article 32 investigation report, and after my many discussions with my
    Staff Judge Advocate (SJA), I concluded that sufficient probable cause existed to refer the case
    to trial.
    After the court-martial, I was somewhat surprised by the findings of guilty based upon the
    evidence that I had previously reviewed and the high constitutional standard of proof beyond a
    reasonable doubt in a court-martial. However, I gave deference to the court-martial jury because
    they had personally observed the actual trial. I subsequently received the request for clemency
    by Lt Col Wilkerson and his defense counsel along with its many compelling clemency letters.
    To be honest, this was the most extensive clemency request package that either my SJA or I had
    ever seen. I read all of the clemency letters (91 of them) in detail and some I read several times.
    Most pleaded with me to review the entire court transcript and all the evidence in detail because
    of grave concerns that they had with the fairness of the trial.

    Does anybody read the paragraphs above as code for:
    Sexual assault is a hot-button topic for any commander exercising their General Court-Martial Convening authority. The culture in today’s military is to send even highly questionable cases to court-martial under the excuse that the Article 32 IO’s recommendation to refer the case requires the lowest burden of proof.  I struggled with this when I decided to send LTC Wilkerson’s case to Court-Martial, but I thought it was a win-win for two reasons: (1) I would cover my six and wouldn’t have SWAN, members of Congress, or the producers of “The Invisible War” accusing me of sweeping unfounded rape claims under the rug, and (2) the panel would acquit LTC Wilkerson who could remove the taint of an allegation that I believed was most likely false.  When the verdict came back, I was completely baffled how LTC Wilkerson could have been convicted beyond a reasonable doubt, so I took the action that I should have done in the first place and am completely authorized to do IAW the UCMJ.
    Also, this letter addressed a large concern that I had regarding the SJA’s recommendation to approve the findings.  It appears by my reading of the letter, specifically the last paragraph of page 2 that, in the end, the SJA was on board with the decision to dismiss.  That gives me a little more comfort that the correct action was taken, and hopefully takes away one of the arrows in the quiver of those who want to fundamentally transform the UCMJ from its 18th Century foundations.

  41. N says:

    K Fischer: That’s EXACTLY how I read those paragraphs.
    Post-trial courage is nice and all, but wouldn’t be necessary with a smaller amount of pre-trial courage…

  42. Tami says:

    @CONUS AF Capt:
    On Article 66 review, the appellate courts take a fresh look at the evidence, and understanding they didn’t see the witnesses testify, etc., if they are not personally convinced of guilt BRD, then they must reverse.  In a factual sufficiency of the evidence review, there is no “clearly erroneous standard.”  What you are thinking of is appellate review of a motion, like a motion to suppress.
    Don’t forget the CA’s legal advisor is a senior JAG.

  43. TC says:

    K Fischer,
    An O-6 SJA “fully respect[ing]” his O-9 boss’s decision is not exactly the same as agreeing with that decision.

  44. Lieber says:

    What TC says as to those last paragraphs.

  45. Winston says:

    Dwight, I think you might be neglecting to look at all the numbers and being very selective with the ones you do.  Obtaining 4 votes of the “smarter” panel to get a conviction to me seems harder than all 6 votes of the jury whose members weren’t smart enough to get out of jury duty.  And I know it’s over generalizing to say all panels are “smarter” than juries, but I would imagine this is by in large the case.  Additionally, you ignore the opposing numbers.  To get an acquittal from the panel you would need just 2 votes whereas you would need all 6 from a jury (not to mention that if you don’t get all 6 you could get retried).  In the end, there are pros and cons to both systems but to simply suggest it’s “easier” to obtain a conviction on pure numbers alone is just touching the surface. 
    I also think the life-long stigmatization idea might be a bit of an oversell (although it’s worthy of debate).  I’d be surprised if the general public understands a court-martial conviction (SPCM and GCM) equals a Federal conviction or that there is no differentiation between a misdemeanor or felony therein.  Lots of folks live a fine life with Federal convictions on their record, especially the ones savvy enough to understand any hinderances they may face and overcome them (i.e., self-employment, applying for jobs that require no background check, or simply lying on the application since getting caught would result in non-selection or subsequent termination).  Sure there can be consequences on voting rights, employment and licensing, receipt of Federal benefits, and immigation.  Collateral consequences I might add apparently not even worthy of instructing panel members about (which I probably would agree should be changed).  Add in a punitive discharge and/or sex offender registry and I think your statement is more compelling. 
    Anecdotely, I’ve never had an appellate client tell me they were thinking of killing themself after they had been convicted and punished (whether that punishment was complete or ongoing).  Sadly, the same is not true of my clients that were pending court-martial including the ones who were actually innocent.  It would probably be an interesting to compare the statistics regarding suicides of folks pending trial versus post-trial since we can all agree that my anecdotal evidence is far from definitive proof.    

  46. k fischer says:

    I agree that “on board with” has a little more favorable conotation than “fully respected.”  Still, it’s better than ignored (Boston Globe March 14, 2013), disregarded, or taken against (Nancy Parrish) the recommendation of his SJA.   

  47. TC says:

    K Fischer,
    I think the SJA could “fully respect” his boss’s decision to completely disregard the SJA’s recommendation.  An SJA could in good faith say “sir, if you truly believe this accused is not guilty, that is an appropriate reason to grant clemency and I fully respect that.  My recommendation, however, is to let the verdict stand, as it was reached by a group of senior officer members that viewed all of the witnesses and judged their credibility in person.”

  48. Senior Defense Counsel Without the Initials N.M. says:

    @ResIpsaLoquitur, your comment about the standard LOR template being needed in the future was worth reading all 46 comments.

  49. DefenseFriendly says:

    @ Lieber:  You are incorrect.  I personally know of two cases where he did just that–spent several weeks scrutizing the ROTs, evidence, and clemency requests for 2 A1Cs.  In one of the cases, he set aside the conviction, and in another, he effectively commuted the BCD by recommending entry into the return to duty program (the airman was successful and continued in the Air Force).  I was defense on one case and the chief of justice on the other.  In other cases where I worked for him, he used the same level of scrutiny and approved the findings and sentence.
    @ Mack: the General’s memo did not come out until well after trial, so of course no one knew that he had reservations about whether to refer the case to trial after the 32.  His post-hoc memo does not limit the perceived pressure on a panel member.  Also, I do believe that certain panel members feel pressure.  When they are notified of court-martial service, they typically get a memo or e-mail stating that the wing commander/number air force commander has assigned them to court-martial duty.  It’s not uncommon for a member to contact the legal office and try to get out of court-martial duty, only to have the justice paralegals say, “Col so-and-so personally selected you to do this.  You will have to personally request from your Sq/CC, Gp/CC, and the Wg/CC to be excused.”  In sum, members are well aware of how they end up on a panel.  Panels are not randomly selected in the Air Force.  Although I think many Air Force officers do not feel that kind of pressure, it’s hard to believe that some would not.

  50. k fischer says:

    And, I fully respect your opinion to disregard my point, but in good faith my opinion has changed from believing that Franklin completely disregarded the SJA’s advice, to believing that the SJA came around and advised Franklin to do what he did based on this:
    Based upon his personal knowledge of how extensively and thoroughly I had reviewed and deliberated on this case, my SJA said he fully respected my decision to disapprove findings in this court case. 
    But, I could be wrong, and often times am according to my wife, especially when I accuse her of being a good fer nuthin’ Hitler lovin’ Nattzie, after she questions why I have to watch Inglorious Basterd every time it is shown on TNT….dammit…….Godwin was right…….every online conversation ultimately ends into someone mentioning Hitler or a Nazi…….

  51. Dwight Sullivan says:

    Winston, the point I made is that it’s easier to get a conviction if all that is required is a 4-1 vote to convict rather than a 6-0 or 12-0 vote to convict.  The esse of getting an acquittal isn’t relevant to the calculation of how easy it is to get a conviction.  Lt Col Wilkerson couldn’t have been convicted upon a 4=1 or 5-0 vote of a jury.  Had the government been required to obtain 1 or more additional votes to get a conviction, we have no idea whether it could have.  One of the points of that was to respond to a commentator who talked about the sanctity of the jury verdict.  Lt Col Wlkerson didn’t have a jury.  He had a different system with different rules, one of which is the CA can set aside a finding of guilty.  Now SECDEF is proposing to significantly scale back that protection and Congress seems inclined to go along with that.  So the system will end up, on balance, less defense friendly.  I stand by my point that we shouldn’t elminate such protections without considering how other parts of the system we have — such as allowing a conviction on a 4-1 vote — may negatively impact the defense. To paraphrase Chief Judge Baker, like the winds at Dolly Sods, the recent proposed changes seem to blow in one direction.

  52. ResIpsaLoquitur says:

    Thanks!  I can’t wait to see an appellate brief where a trial counsel or judge gets called out for comments traced back to CAAFLog.  Thank goodness for quasi-anonimity.  (Speaking of which, I hope your family’s well!  I’ll just say that we were stationed together once and leave it at that.)

  53. Lieber says:

    If that is the case then LTG Franklin is just about the only convening authority out there who is closely scrutinizing trials (it also must be a less than busy jurisdiction).

  54. football bat says:

    I agree with the idea that military justice is in need of improvements. I think most people are sympathetic and moved by SWAN and similar groups that present very compelling cases. However, I am worried that knee-jerk reactions will be detrimental. As an example, I believe it is now required prior to admin separation and perhaps prior to court-martial proceedings, that service members must state whether they believe a charge or separation action was retaliation for reporting sexual assault. If they say yes then mandatory review is kicked in. What about a service member that reports a theft and suddenly comes under charges or is recommended for separation? Seems we already have some imbalances in the system depending on the circumstances. 
    I worry that further tinkering without careful deliberation is going to be detrimental. Viewing this cynically, I also worry that there are two driving forces: 1) politicians that want to act quickly for the sake of votes, and 2) generals and admirals that want to preserve their power and avoid more shame in the wake of GEN P, sexy Tampa emails, playing psyops with US citizens and congressional members, Kip Ward, Sinclair, the eleventy billion skippers the Navy has relieved, etc.
    Force 1 will rush to action without much consideration for the future. Force 2 will act to preserve their status but will make empty promises to Congress about getting tough on ethics and so forth. While each of their own mired in scandal will retire with full benefits, they’ll single out some mid-grade officers and senior NCOs to drive out, and they’ll get no retirement, no medical, a stained reputation and the legitimacy of their guilt will be questioned. 
    Neither of those forces produces a better system. I hope my cynicism is misplaced.

  55. Winston says:

    Dwight, Completely agree that the recent proposed changes seems to blow in one direction only without properly considering balance in the system.  Although the changes to Art 120 were intended to make getting convictions easier – that didn’t turn out quite as expected I think.

  56. k fischer says:

    I’m going back and forth on this.
    Mrs Wilkerson’s version of the events at her house the :night of the alleged incident was
    substantially consistent from her initial OSI interview statement, to her Article 32
    investigation statement, and through her court testimony. And my detailed review of all
    phone records (of all the key witnesses) validated Lt Col and Mrs Wilkerson’s combined
    version of what occurred on the night in question and the next morning. Please note, I
    spent close to 4 hours looking at phone record evidence alone. In particular, I detennined
    that the alleged victim’s cell phone records (times and durations of incoming/outgoing
    calls and text messages) when aligned with the testimony and phone records of the friend
    of the alleged victim, all merged to a common picture that was more consistent with
    Lt Col and Mrs Wilkerson’s combined version of events.
     I have to go back to the 4 hours……4 hours, really????…. Lt. Gen. Franklin spent reading the phone records, which should provide the smoking gun.  He mentions that the vic says she passed out about 0030 – 0100 hrs, but that the phone records show she was texting a friend at 0145 hrs. That could be a contradiction, but it could also be mistake in time.  Both parties seem to indicate that the vic was ordered from the house at 0300 hrs.  Mrs. Wilkerson says the vic was up and about and was making a bunch of noise, so she ordered the woman out of the house at 0300, but her husband was in the marital bedroom.
    I’m assuming that there was no activity between 0143 and 0300 hrs, otherwise, certainly the GCMCA would have mentioned it after pouring over the phone records for four hours.  Four hours?  Really?  I still don’t know how these facts combine to corroborate the Wilkerson’s story, as opposed to the vics.  Seems that an hour and twenty minutes is enough time to get into bed and fall asleep.  Would it be better if she testified, “Sometime after midnight, I went to a bedroom in their house.  I went to sleep, then I was awaken by someone sticking their finger in my vagina and a bedroom light turning on.  I remember checking my watch when I got thrown out of the house and it was 0300 hrs.”  Her phone records would have supported that version if there was no activity between 0143 and 0300, and it seems the GCMCA would have mentioned it had there been activity between those two times.

  57. Mack says:

    Winston & Mr. Sullivan,
    Yes, eliminating the power of one officer to overturn the votes of 4-12+ other officers who all were appointed, by him, because he trusted their judgment would be less “defense friendly” but “less defense friendly” <> unconstitutional or even unfair.  What I and at least one other asked was what are the real countermeasure within the system that protects accuseds from an unconstitutionally small panel?
    I don’t see the relationship between too small a panel and needing unilateral power to dismiss post-verdict by GCMCA.  The Liberal Grant Mandate seems more like the device.  Accuseds may be convicted on the votes of fewer than six people, but they can exercise great power over the composition of the panel.  (Yes, the “government hand picks the panel,” but survey trial and defense counsel after a panel is seated and I’ll bet 9/10 times the defense likes the panel much more than the trial counsel.)  I may be way offbase, so it would help me if you could explain how, but for Article 60, the system would be unfair.
    Maybe the better argument would be that executives throughout the U.S. have the authority to pardon people for whatever reason (or no reason) and Article 60 grants the GCMCA that power.  Of course, the CinC already has that power, which makes the argument less compelling.

  58. Mack says:

    I understand that the memo was written post verdict, but if the GCMCA felt that he was referring a case that should be an acquittal, that suggests that maybe there was some opposite pressure, i.e., to do the GCMCA’s dirty work and tell the victim “no, it didn’t happen that way.”  Regardless, unlike a unanimous verdict, no GCMCA can know how any particular member voted.
    And the GCMCA can only legally criticize the panel’s decision if they convict, so any panel member fearing reprisal might elect to acquit rather than risk public rebuke.

  59. Cap'n Crunch says:

    The FOIA release contains everything — the 32 report (the 32 officer recommended GCM) – but admits its a case about a credibility battle; the AFOSI report, the IG report, the record of trial, and the general’s memo.

  60. Iain says:

    While much of this thread highlights similarities and differences between military and civilian justice systems (many thanks to Col Sullivan and Winston for raising and fleshing out those issues), what’s missing is discussion of the civilian counterpart to military clemency authority.
    In 2002, I argued two cases before the Illinois commissions empaneled by then-Governor Ryan to inquire into the basis of the convictions for all prisoners on death row at that time. Prior to undertaking those hearings, we asked on numerous occasions if the governor intended to declare blanket clemency for all prisoners (mainly because Illinois law required notice to victims’ families of the hearings, and we didn’t want to notify if it wasn’t really necessary). He stated several times that he had no intention of doing so. Two days prior to leaving office, he did it anyway.
    I argued then (and would maintain today) that, where an executive authority employs his powers in a manner which arbitrarily and capriciously infringes upon the constitutional province of another branch of the government (as did Governor Ryan’s granting of clemency based primarily on his disagreement with the notion of the death penalty generally-a matter solely within the purview of the legislature to define and the courts to adjudicate), that the action is voidable.
    That’s not to say that the CA’s action in this case is an abuse of power. Rather, he’s articulated the basis for his decision and, while many might quibble with the means, method, or quantum of clemency in this case, what remains is that the CA has exercised a statutory authority, and articulated a basis for doing so. In the process, he has likely drawn the attention of legislators who will fence that power in.
    That, by the way, is a big difference between the military and civilian clemency powers:  the Illinois governor can still grant it, and likely will again (even, as before, where doing so is arguably irrational and unsupported by the evidence in the case).
    So why do politicians and vox populi have such an issue with a senior officer making a thorough review of evidence in a case and making a decision based on conscience, when civilian elected officials remain at librety to do so on much thinner review, and for more cynical reasons?