The Wright case is an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.

I discussed the AFCCA’s decision in this post. I summarized our past coverage in this post.

Now Stars and Stripes reports here that the case will proceed to trial despite a finding of improper influence by senior Air Force officials:

Lt. Col. Joshua Kastenberg, in a July 30 ruling in response to a defense motion to dismiss the case against Airman 1st Class Brandon T. Wright, found that Lt. Gen. Richard Harding, formerly the Air Force Judge Advocate General, had improperly influenced the case or had given the appearance of doing so.

One such instance, the judge ruled, was recommending that Wright’s case be transferred to another court-martial convening authority for a do-over after the first convening authority, Lt. Gen. Craig Franklin, dismissed the case in the summer of 2013. Franklin’s dismissal came after an Article 32 investigative hearing at Aviano Air Base, Italy.

Such transfers are almost unheard of. It happened in the Wright case, Kastenberg’s ruling says, in part because Harding was worried that “the failure to have charges preferred against SrA Wright would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court-martial process.”

. . .

Yet none of these actions affected the current case against Wright, Kastenberg said, because all parties involved in the second investigation — at the Air Force District of Washington — acted independently, with no unlawful command influence. As a result of that investigation, a convening authority sent the case to court-martial.

17 Responses to “The Wright case moves towards trial”

  1. JustAnotherADC says:

    I’m a little surprised that a retired TJAG, who is still “subject to the code,” would openly and personally criticize a military judge’s ruling in a pending case.  Regardless of the merits of the ruling, that seems inappropriate to me.

  2. Phil Cave says:

    I did not notice any direct reference to Art. 37.  Is there anything in the MJ’s written findings.
     

    The ruling took Harding to task for supposedly telling Col. JB, Franklin’s legal adviser, that sexual assault cases, absent “smoking gun” evidence about an alleged victim’s credibility, should be sent to court-martial. In so doing, Kastenberg wrote, Harding improperly attempted to shape JB’s future legal advice. Katsenberg ruled that the forced retirements of JB and Franklin after their handling of the Wright case created an appearance of unlawful command influence.

    He said Bialke’s version of their phone conversation was likely colored by an attempt at self-justification after the latter had made mistakes in advising Franklin.
     

    I understand there is a fine line between influence and properly managing legal advisors.  But where is that?  And POD and I agree on something.

    But officials with the advocacy group Protect Our Defenders, which supported Gillibrand’s bill to strip commanders of their powers and give them to professional prosecutors, vouched for Kastenberg’s integrity[.]

  3. DCGoneGalt says:

    So after transferring this case to get it to trial the former TJAG throws a subordinate GCMCA SJA under the bus for “spinning” the facts of that totally innocent (sarc) conversation.  Stay classy!

  4. McLovin says:

    “It’s a victim’s right to be heard before a dismissal. That didn’t happen. This case was always about victims’ rights, and the right to be heard is paramount.”  So says the former TJAG.  Funny, I thought the case was always about whether Airman Wright sexually assaulted the alleged victim.

  5. k fischer says:

    “This should be extremely troubling that an experienced, senior judge found that the Judge Advocate General of the U.S. Air Force engaged in unlawful command influence in part to stop the legislation to reform military justice,” said Don Christensen, POD president and the Air Force’s former top prosecutor.

     
    Okay, I’m confused, which, with me, is not a difficult endeavor.  And, I am not too proud to admit that Col (R) Christensen is far more intelligent than I regarding military justice issues and sexual assault prosecutions. 
     
    My questions are: Should we (1) leave UCMJ authority with Commanders because TJAG’s commit UCI, or should we (2) take UCMJ authority away from Commanders who commit UCI?  Or, (3) should there be a stovepipe SVP Regiment of attorneys whose sole function is to prosecute sexual assaults?  If option (3) is desired, then where will these cases be tried?  In Washington DC?  Because the logistics of that option will be a nightmare.  Or, will we have regional SVP’s who work in concert with CID, OSI, and NCIS on each base to prosecute sexual assaults?   I’m trying to figure out what the plan is.  I think that option (3) with regional SVP’s in a stovepipe organization would solve the problem of diminishing the appearance of impropriety in these cases, maintain prohibitions under Article 13.  Or, maybe Col. Christensen is just making a comment that is limited to the facts and circumstances of this particular case and does not affect any current policy because I, too, find it troubling that a TJAG for one of our branches of service is being called out by a respected military judge.
     
    Of course, this article does not touch on the absurdity of the facts in this particular case where an NCO invites a junior enlisted and his friend to her place to watch movies, drinks copious amounts of wine, gets under a blanket with the Accused, goes back to a bedroom with the Accused where the friend hears moans of pleasure in his opinion, and reports the next morning that she was raped.  Hmmmmmmmm……..  I am not perplexed why this case was dismissed after the first 32.

  6. RY says:

    I don’t follow how UCI in the process that moved the case from one GCMCA to another, through SECAF, in an unprecedented fashion, is a non-issue because that second process was independent. There’s fruit of a poisonous tree here, by analogy. It feels like the MJ saying it was unlawful for cops to search Amn Snuffy’s computer, which led to an investigation of Amn Snuffy for that material but because the second investigation was done right, the preceding unlawful portion is BRD irrelevant. There’s no second investigation or second opinion without the intervening UCI and I don’t see how it cures the carcinoma that is UCI.

  7. DCGoneGalt says:

    RY:  I am sure there were affidavits from the new commanders that said the facts of the case were evaluated without regard to any previous actions.  So . . . you see, there was no UCI.  

  8. RY says:

    My 2d case as an ADC involved UCI. JA wanted charges and the Sq/CC and Grp/CC did not. JA kept shopping for a CC to prefer and settled on a Grp/CC from a different wing who asked, “Why do I have this? Seems to me someone wants this to go forward and is shopping for a lackey. They should do it themselves.” The Wg/CC and SPCMCA took some offense but I can’t help but wonder…so not a single one of the folks in the second process, none of them naive or very junior officers, wonder the same thing? It makes perfect sense that I’m doing someone else’s work, handling a case outside of my normal jurisdiction, handed it by my superiors with no expectations. I’ve got a bridge to sell you too.

  9. Dew_Process says:

    Let’s just say, that anyone who’s ever had more than superficial dealings with Rich Harding quickly learned that it was “His way or the highway!”
     
    As to Lt Col Kastenberg, he’s a bona fide legal scholar, having authored, Shaping US Military Law: Governing a Constitutional Military, see THIS and Maj Gen (ret) Charlie Dunlap’s comments; The Blackstone of Military Law: Colonel William Winthrop, review HERE,  and Law in War, War as Law: Brigadier General Joseph Holt, review HERE.
     
    Res ipsa loquitur!

  10. Tami a/k/a Princess Leia says:

    I think it’s pretty obvious there’s all kinds of unlawful command influence that no one on the Government side will admit actually, but which we all know there’s the appearance of it.  Is it any “coincidence” that, after the Wilkerson case, and after this case got tossed after the first Article 32, and after it came to light that another female USAF GO had her nomination held up by Congress over disapproving a SA conviction for an Article 15, that SECAF just “happened” to cherry-pick a female GO, who “happened” to be on SA Task Force?  Why her, and not some other USAF GO who was equally qualified?  I’m sure there were other GOs available who were closer too.  Though maybe those other GOs didn’t want the case (for obvious reason, who wants to go through what LTG Franklin went through)  Also interesting that the case got referred after a SECOND Article 32 officer recommended against proceeding, and the referral was for rape, which “happened” to not be supported by the evidence, and there “happened” to be a conversation between TJAG and SECAF and TJAG and SJAs, and LTG Franklin’s “retirement” after all the fallout just “happened” to be publicized, and he “happened” to retire as a 2-star when retiring as a 3-star could have been approved (just like GEN McChrystal was approved to retire as 4-star instead of 3-star because he didn’t have enough TIG to retire as 4-star otherwise), and Congress just “happened” to be making a big stink about SA at the time, and Gillibrand just “happened” to be going bat-shit crazy, and Navy Academy SA case just “happened” to be going around this time, and there “happened” to be a lot of clamoring over BG Sinclair trial, which by the way, got tossed because higher ups were concerned about Congress watching the case closely, and let to senior JA consulting with BG Wilson at OTJAG for guidance, which then led to COL Pohl declaring UCI, which just “happened” to result in killing the SA charges against Sinclair, which coincided with the acquittal in the Navy Academy case (rightfully so), which raised more Congressional ire.  And people think with a straight face that there isn’t even the appearance of UCI affecting the trial?
     
    The Wright case should have stayed dead.  The right thing was done originally in killing the case after the first Article 32.  We cannot bow to political pressure to reach a particular result in SA cases.  The reality is that there are some “victims” who really aren’t victims, either because they intentionally lied, or because someone told them they were a “victim” based on an incorrect interpretation of the law.  Yes, people lie.  I don’t care about stats because stats are meaningless without an accurate understanding of the underlying rationale for the stats.
     
    I think personally that it’s possible SA cases are resulting in acquittals because the system is fighting back against Congress.  The decision-makers will not allow themselves to be bullied into finding accused guilty because they happened to be charged with SA.  Congress can’t pass any law that requires a predetermined outcome, nor can Congress keep changing the rules to pro-Government without throwing a bone to the accused.  The more they try to make the system anti-accused, the more their moves backfire, and the madder we all get.  And while Congress can try its darndest to keep changing the system, ultimately the judiciary has the final say in what the law says.  That’s the way our system works.
     
    Such as shame that former AF TJAG commented the way he did.  What “mistakes” did Col. Bialke make in his advice?  Since the “victim’s” SVC submitted a 12 PAGE memo on her behalf objecting to dropping the charges, I would agree a personal appearance wasn’t necessary.  “Wrong” advice in saying the evidence doesn’t support the charges?  Perfectly reasonable.
     
    I smell an acquittal coming.  Most of the rape cases my subordinates and I defended in court should never have seen the inside of the a courtroom.  A few of them didn’t.  Out of the ones that did, we fought hard to get rid of them before trial, most of the time unsuccessful.  The ones that ended in acquittals, I ended up glad they went to trial, as the clients were then exonerated.  A case that gets tossed out for reasons other than its merits, there is a perpetual black cloud hanging over the client’s head.
     
    The irony that, if Gillibrand had her way, the Wright case would never have seen the inside of a courtroom.  And I’m sure McCaskill enjoys reminding Gillibrand of that. 

  11. DCGoneGalt says:

    Tami:  FWIW, the AFCCA opinion states that the 2nd Art 32 IO, a judge, recommended not referring rape but did recommend referring sexual assault.  

  12. DCGoneGalt says:

    Tami:  I am unsure of the “mistakes” of Col Bialke, the first GCMCA SJA.  Maybe the original sin was the mistake of not providing the JAG chain with proper heads-up to allow UCI to occur when Gen Franklin was getting ready to set aside the Lt Col Willerson case?
     
    All:  As to the issue of defective advice, the AFCCA opinion says that the MJ, Lt Col Kastenberg, asserted defective advice was given by Lt Gen Harding:  
     

    The military judge then concluded the evidence gave rise to “the possibility of government misconduct; that is, the misshaping of legal and other advice to the acting Secretary of the Air Force as well as to the AFDW [Commander] in order to bring the [appellee] to trial by general court-martial.” The military judge noted Lt Gen Harding provided “defective pretrial advice to the Secretary of the Air Force.” This apparently referred to Lt Gen Harding’s failure to advise that notwithstanding Lt Gen Franklin not meeting with the named victim, Article 34(a)(2), UCMJ, 10 U.S.C § 834(a)(2), precluded Lt Gen Franklin from referring the original specifications to a general court-martial once his staff judge advocate had advised the specifications were not warranted by the evidence. The military judge also stated Lt Gen Harding’s statement adopting the position of believing an alleged victim “denoted an expectation from [TJAG] of inflexibility in the advice tendered from a GCMCA/SJA to a GCMCA.”
     

    Is the issue whether Col Bialke’s finding of there being insufficient evidence to support the charge defective advice if TJAG or a superior JAG disagrees?  Since when an SJA finds insufficient evidence then the charge may not be referred, what is the remedy for a superior SJA who disagrees with the recommendation?  Is it to elevate the case to a higher HQ?  Is it to transfer to a new convening authority, as was done here?  This case and the way the AF handled it reek of political desperation but I want to ask the old “what would you do” if you were a higher HQ SJA who sincerely disagreed and felt there was sufficient evidence to refer on rape or sexual assault when the recommendation of the subordinate SJA that there was insufficient evidence would take it out of the hands of the commander?  

  13. DCGoneGalt says:

    Sorry, the first sentence to Tami above was saying that the original sin of Col Bialke may have not been allowing the UCI to occur at an earlier point in the sexual assault frenzy, back when Gen Franklin was deciding what to do in the clemency stage of the Lt Col Willerson case.  I am sure if the GCMCA SJA didn’t give TJAG an opportunity to “manage” the situation that would have created bad blood within the JAG ranks between TJAG and a GCMCA SJA who couldn’t “control” their commander.  I say that because I am unaware of what mistakes Col Bialke made.  For instance, at the time the non-referral decision was made was there a legal requirement for the commander to meet with the victim?  I know the commander had to consider the victims views but not of a requirement that a commander meet with a victim.  That requirement was not effective at the time of this decision.  Correct?

  14. DCGoneGalt says:

    The Stripes article mentions that the trial is set for October.  However, there is no mention of the trial on the AFTJAG public docket.  
     
    http://www.afjag.af.mil/docket/index.asp
     
    I have noticed that the service’s public dockets are sometimes not listed in cases that are high-profile but am unsure if this is because the docket seems only to list an original court date (often for arraignment and/or motions only) and does not get updated with the actual date of trial.  Any thoughts?  IMO, it kind of defeats the purpose of having a public docket if you don’t list the actual dates of what should be a public trial.

  15. Nobody says:

    Though SCOTUS case Weiss is about judges an interesting line from their opinion may be applicable: “By placing judges under the control of Judge Advocates General, who have no interest in the outcome of a particular court-martial, we believe Congress has achieved an acceptable balance between independence and accountability.”

  16. Vulture says:

    DCGG.
    I saw that one of the items in the NDAA Senate version was: Sec 556: Public Availability of Records of Certain Proceedings Under the UCMJ.
     
     
     
     
     
     
     
     
     
     
     
     
    SEC. 556. PUBLIC AVAILABILITY OF RECORDS OF CERTAIN PROCEEDINGS UNDER THE UNIFORM CODE OF MILITARY JUSTICE.
     
     
     

  17. Vulture says:

    is there an echo in here?
     
    here.
     
    here.