http://www.stripes.com/news/air-force-removes-lt-gen-franklin-from-sexual-assault-case-1.258268

30 Responses to “LtGen Franklin we are not amused”

  1. Zachary D Spilman says:

    Franklin in August declined to court-martial an Aviano airman after an Article 32 probable-cause hearing.

    The case involves an Air Force staff sergeant who reported that a subordinate raped her after an evening spent drinking and dancing at a club. The accused airman claimed the sergeant consented.

    The case hearing officer recommended against proceeding to court-martial in the case, and Franklin’s legal adviser also agreed with Franklin’s decision. In most circumstances, that would have been the end of the matter.

    Instead, top Air Force officials decided that the case should be re-investigated. In essence, said an official familiar with the case, “Franklin’s decision has been second-guessed by the Air Force.”

    Wow.

  2. Cap'n Crunch says:

    Riddle me this:  Goes to new CA.  New CA reads writing/tea leaves, and decides to refer.  Instant UCI case and dismissal, no?  Can anyone explain to me how that wouldn’t be the case?

  3. Charlie Gittins says:

    I think removing a commander from the decision matrix is not supposed to be a decision made once the commander had exercised his discretion and superiors don’t like the decision.  Now we’ll see if a Military Judge has the cajones to do the right thing.  I am not holding my breath . . .  the Air Force JAG community has not really ever impressed me with moral courage.  But, of course they take their lead from their leadership and they have a history of underwhelming moral courage and integrity.

  4. Saul Goodman says:

    Why don’t we just get rid of commanders in the disposition process already.  Not because they can’t do the job, but because they are no longer trusted to make military justice decisions (unless, apparently, that decision is to refer a case to court-martial and rubber stamp whatever findings and sentence are adjudged).  More motion ammunition across the services – nice job USAF.

  5. Sea Lawyer says:

    Hmm, I suppose the USAF is suffering from some short-term memory loss.  As I recall, the Commandant of the Marine Corps removed the consolidated disposition authority in the desecration cases after that CA declined to court-martial the Marines involved.  UCI motions ensued and, well, the rest is history.

  6. Why is he still a CA? says:

    Two questions:
    1) Why do you assume “moral courage” is not taking it to court?  You know nothing about this case, so how can you begin to judge the morality of a decision.  Come on man.
    2) Why is it UCI for a superior commander to disagree with their subordinate?  Isn’t that just command influence?  Granted, if the new CA is told to take a certain action that’s UCI.  But just disagreeing can’t be.

  7. John O'Connor says:

    Building on the comment of Why is he still a CA?:
     
    My somewhat cloudy recollection is that a convening authority can convene a court-martial against anyone subject to the Code, though typically the CA to do so is the one who “owns” the accused.  Is that right?  If it is, how is it UCI for a CA to say “that guy decided not to prosecute, I disagree and will prosecute it under my own authority as a different CA”?  It might be bad form, or leave a bad taste in one’s mouth, but that doesn’t seem like UCI if I am right that there is not just one GCMCA for each accused. 
     

  8. Bill Cassara says:

    Of course, if the “reformers” got their way, the result would have been the same, as the SJA recommended dismissal.

  9. rob klant says:

    UCI?   It seems to me that this is exactly the way the system is designed to work, see e.g.  Villareal, 52 M.J. 27 (CAAF 1999).
    Maybe the case also demonstrates one advantage of CA’s retaining prosecutorial discretion, i.e. if it were transferred to the lawyers I wonder what the structure/mechanism would be for one prosecutor to trump the decision of another? 

  10. Lieber says:

    It’s absolutely not UCI for another convening authority to take another look.  JOC: your recollection is correct.
    I get the bad taste in the mouth…but imagine if you were a sex assault victim and LTG Franklin was the GCMCA on your case….how would you feel?

  11. Advocaat says:

    According to the article, “Franklin did not consult with the accuser before deciding to drop criminal charges, despite a written request from her to be consulted.” It’s not clear whether anyone from the government accomplished this step, which is required by AFI 51-201, para 7.12.12 under “ordinary circumstances.” Concur w/ previous comments that transferring to another CA to look at this and any other aspect is not on its face UCI. Finally, disparaging statements against entire groups have not really ever impressed me; this site is better than that.

  12. RKincaid3 says:

    Does anybody really still want to TRY to defend the UCMJ and the most recent amendments in light of this?  Who can really debate the need to finish evolving the UCMJ from what it is to where it needs to be?  This is not a justice system…this is retribution system serving a political master who’s biases sway with the winds at election time.  This is the result of outside influcences, not a thoughtful, independent justice system.

  13. RKincaid3 says:

    Agree this is not UCI…it is reaching down and assuming jurisdiction and handling it at a higher level under the superior commander’s own inherrent authority. UCI is a superior directing a subordinate to execute the subordinate commander’s inherrent command authority a certain way. But the fact that this “reach down and grab” result is legal under the UCMJ is itself a problem and is but one of the many reasons to move the UCMJ into the 21st Century.

  14. RKincaid3 says:

    Sorry all, for the typos in my last two posts….multi-tasking and not paying close enough attention.

  15. Sam Adams says:

    J’OC, Lieber, RKincaid3,
    The scenario you’re discussing, a superior CA taking a case from a junior CA and taking action on it would not be UCI, as you all correctly observe. That doesn’t appear to be what’s happening here. From the article:
    “Exactly why Air Force Chief of Staff Mark Welsh and then-Acting Secretary of the Air Force Eric Fanning removed the most recent case from Franklin and reassigned it for a second look — a most unusual event — is unclear.”
    and
    “A Joint Base Andrews commander reviewed the case and preferred charges against the airman. The new Article 32 hearing is scheduled for Jan. 8 and a recommendation on whether to court-martial the airman will be sent to Maj. Gen. Sharon K.G. Dunbar, commander of the Air Force District of Washington.”
    Higher took the case away from LtGen Franklin because they disagreed with his decision and just gave it to someone else. That has a distinct appearance of UCI, particularly if it ends up getting referred. It’s particularly interesting that the GCMCA is now a lower ranking GO. As one commenter on the Air Force Times post observed MajGen Dunbar has had some interesting past assignments. From her bio:2. September 2004 – June 2005, member, Defense Task Force on Sexual Harassment and Violence at the Military Service Academies, Office of the Secretary of Defense, Pentagon, D.C., as a colonel 3. August 2008 – December 2009, member, Defense Task Force on Sexual Assault in the Military Services, Office of the Secretary of Defense, Pentagon, D.C., as a brigadier general 

  16. Innes says:

    “imagine if you were a sex assault victim and LTG Franklin was the GCMCA on your case….how would you feel?”
    Respectfully, appeals to emotion are almost never helpful in these discussions. I’m sure a sex assault victim might well feel that LTG Franklin might be too defense-friendly, just as I’m sure sex assault accused’s feel that submitting clemency is a waste of time regardless of what issues or errors they raise, because the lesson of LTG Franklin’s case is “GOs, never ever grant clemency in 120 cases.” But the personal feelings of victims, alleged victims, the accused, etc. make a terrible basis for deciding questions of legal structure.

  17. RKincaid3 says:

    Sam Adams:  concur that it is suspicious, especially given the now controlling CAs background.  The decision to prosecute now appears hardly independent or fact driven but outcome (or politically) oriented. Even if such is not UCI per se under the traditional analysis, this certainly is forum shopping. Can’t (or shouldn’t) such forum shopping rise to the level of UCI even if a subordinate is not told how to exercise their authority command discretion by a superior? But more importantly, regardless of whether UCI; regardless of whether legal; this result should trouble everyone who is NOT an “ends justifies the means” (King George??) kind of guy.  It certainly is more of a results oriented system than a “justice” system and completely undermines any assertions that commanders always do the right thing or are truly independent of external pressures and are the best to decide these cases. This fact pattern clearly demonstrates that commanders make prosecution decisions for reasons having nothing to do with law, facts or justice.   And it is a textbook example of how broken the current UCMJ is (except to those who are opposed to change no matter how badly needed).

  18. DCGoneGalt says:

    I noticed that neither the Stripes article cited or the Air Force Times article mention the recommendation of the Article 32 IO.  I hope this young Airman has the ability to get a fair jury because that is his only hope in this “justice” system.

  19. DCGoneGalt says:

    Just saw the first IO recommendation referenced in the article.

  20. Charlie Gittinbs says:

    Ding, ding, ding . . .  Sam Adams wins the new steak knives set.  I wonder how the new CA was chosen.  Could it be that the new CA is more a “reliable” thinker?  The motion hearing should be interesting, =assuming that the MJ permits the searching inquiry called for under the circumstances.  

  21. RKincaid3 says:

    Assuming this “rare” act is legal and not UCI, its meaning is crystal clear, especially given that the recent NDAA recnetly pushed through amendments codifying specifically this kind of conduct–we now have a contest among General Officers–a race to the courthouse the evidence be damned–to see which among them will be seen by Congress as being the toughest on sex assualt–and thus be seen as the most likely to be promoted. Is that justice or politics?  It is certainly not part of any true “justice” system in the Anglo-American tradition.

  22. phil cave says:

    http://www.stripes.com/news/officials-concerns-about-hearing-s-inconsistencies-led-to-rape-case-review-1.258409
    Apparently the IO was “skeptical,” and “acted more like a defense counsel,” and wasn’t impartial.
    “Lt. Gen. Richard Harding, the Air Force judge advocate general, was concerned about “inconsistencies in the [hearing] and incompleteness” alleged by the accuser’s Special Victims Counsel and detailed in a 12-page memo sent to Franklin, according to Col. Dave Dales, director of the Air Force Judiciary.”
    Interesting that TJAG who owns the IO, the SJA’s, and the ADC’s took a personal interest apparently?  Was there an ethics complaint as well as letter to LtGen Franklin, or something else that brought it to his attention?
    Now I understand journalists can get it wrong, but if correct why is the Director Air Force Judiciary speaking on this as a flack?
    Some threads still to unravel here perhaps?

  23. RKincaid3 says:

    Interesting follow-up, Mr Cave. Yes, I am sure there is more info coming.  Specifically, I would like to see exactly what constitutes “…inconsistencies in the [hearing] and incompleteness” alleged by the accuser’s Special Victims Counsel and detailed in a 12-page memo….” I would also like to know exactly what constitutes “…failing to act in an impartial manner, as required under military law.”  Or what constitutes an IO who was “…clearly skeptical of the accuser…” or acting “…more like a defense lawyer.”  Is simply asking a pointed or uncomfortable question enough to cross that line?  Is it enough that the victim has to explain her own conduct IN CONTEXT with the accused’s conduct on the ultimate issue of consent?  Or is the victim supposed to get a free pass on her own conduct and circumstances (credibility) so that the allegations are prosecuted no matter what?  Again, folks, whichever side you are on (pro-victim or pro-defense) this case outlines a broken system–one that is simply unconscionable in light of what civilized nations consider to be a “justice” system.

  24. Ken Martin says:

    If the CG is not trusted to make these decisions why is he in command? That’s the problem I have. Although being a CA is important he makes other decisions that are probably or at least potentially more important. That is why is bothers me and I can only assume its more political correctness.

  25. Former DC says:

    Ken is right. This seems clear enough: GCM authority was given to General officers (hence the name “General court-martial convening authority”) precisely because they were experienced and had the resources of command to make these decisions. If LtGen Franklin cannot be trusted, he should be relieved. I don’t see a thing wrong with what he did here. And regardless of the nuances of the law, there is NO WAY a detached observer would in any way call this fair. Railroad job is more like it. How long until someone tries to transfer the officers of a members panel to Shemya (that’s a super remote air base in the Aleutian Islands in Alaska) because they voted for acquittal? All it would take is once and no officer would ever vote for the defense again, for fear of their career. What is the leadership thinking!?!!?

  26. RKincaid3 says:

    It is NOT leading…it’s FOLLOWING the winds of political agendas.  It is the result of the status quo and blind obeisance to military tradition without any regard to propriety, necessity or utility.  It is certainly NOT a “justice” system in operation.

  27. Charlie Gittins says:

    Well, I am glad to see that LtGen Harding made himself a witness on the UCI motion.  Most of the adverse information I have developed of the senior AF JAG Leadership involved the good general when he was Colonel at Barksdale.  Had Mary Boone given me half a chance in the Schmidt case, I would have skinned him alive on cross.  But, he was protected and sacrificed a CAPT PAO instead.         Whoever gets to cross Harding on the motion should contact me; I’ll give them full access to the files and names of witnesses.  This is not Harding’s first UCI rodeo.

  28. Ed says:

    what is really sad is  a system that worked  being destroyed, at least in sexual assault cases, by politicians most of whom would never even think of putting their lives on line for their country
     

  29. DCGoneGalt says:

    Mr. Gittens, I pay to watch that UCI cross.  This case is sickening.  The Air Force should try a pilot program to PCS every Art 120 accused to DC to have a truly “impartial” 2-star prefer charges, then have a truly “impartial” FGO JAG IO recommend the case be referred and then have a panel of members rated by the convening authority.  I sincerely hope DC woodsheds all involved.

  30. JP Reilly says:

    Innes says:
    December 19, 2013 at 1:07 PM  

    “imagine if you were a sex assault victim and LTG Franklin was the GCMCA on your case….how would you feel?”
    Change the narrative:
    “imagine you were (wrongly) accused of sexual assault  and MG Dunbar is the GCMCA on your case…..” Brian Banks, Jameis Winston (two high profile civil sector)  Kelley Stewart, Gen Sinclair (two mil cases)… LtGen Franklin got it right in the Wilkerson case, he put a bullseye on his back…..  list goes on and on…