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IG to return to duty after conviction tossed

Mar. 4, 2013 - 09:10AM   |   Last Updated: Mar. 4, 2013 - 09:10AM  |  
Lt. Col. James Wilkerson
Lt. Col. James Wilkerson ()
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A former Aviano Air Base, Italy, inspector general convicted in November of sexual assault will return to active duty and could pin on his next rank of colonel after an unusual Feb. 26 decision to throw out the case by the commander of the 3rd Air Force.

A jury of four colonels and one lieutenant colonel, all of them men, sentenced Lt. Col. James Wilkerson to a year in prison and dismissal from the service after finding him guilty Nov. 2 of sexually assaulting an American physician assistant in his home.

Third Air Force Commander Lt. Gen. Craig Franklin, who sent Wilkerson's case to court-martial and selected the jury, "declined to approve the conviction because he did not think that there was enough evidence to say that he was guilty," said Lt. Col. Paul Baldwin, a spokesman for U.S. Air Forces in Europe.

In the military justice system, the convening authority — in this case, Franklin — can single-handedly reduce or set aside sentences or overturn a jury conviction, although the latter is "exceedingly rare," said Frank Spinner, Wilkerson's civilian attorney and a longtime court-martial defense lawyer.

Franklin reviewed evidence presented before, during and after the court-martial, Baldwin said. That included a clemency package of dozens of letters of support for Wilkerson, an F-16 pilot who has spent the past 20 years in the Air Force, and other information the jury was not allowed to hear. One of the letters in support of Wilkerson came from a friend of the accuser.

Baldwin could not elaborate on why Franklin reached his decision.

Franklin, a command pilot who has flown the F-16 and B-52, does not know Wilkerson personally or professionally, Baldwin said.

Spinner said Wilkerson was a victim of a military that has become overzealous in the wake of high-profile sex assault scandals across the services, including the investigation of at least 32 basic training instructors at Joint Base San Antonio-Lackland in less than two years.

"The zero tolerance policy is turning into, ‘We need to prosecute more cases, and we need to get heavier punishments,'" he said. In today's climate, "I think you're not going to see many other cases set aside by a convening authority after a conviction."

For victims of military sexual assault and their advocates, Franklin's move to overturn the conviction is a step backward.

"It's an example of a broken military justice system," said Nancy Parrish of Protect Our Defenders, a vocal advocacy group. "It's a system that elevates an individual commander's authority and discretion over the rule of the law."

Conflicting accounts

There was no physical evidence in the case, which ultimately pitted the word of Wilkerson and his wife, Beth, against the accuser.

The night in question, March 24, began with a concert and drinks at a base club and ended with an impromptu gathering at the Wilkerson home.

The accuser stayed behind after the other guests left. She testified she woke in a guest bedroom to find Wilkerson touching her. She said the incident ended when Wilkerson's wife walked into the room and ordered her out.

The Wilkersons have maintained the lieutenant colonel never left his own bed that night. Beth testified she got up about 3 a.m. and told the woman to either go to bed or go home because she was walking around the house and noisily talking on her cellphone. The woman left.

After the conviction, Wilkerson's attorneys appealed to the 3rd Air Force commander for clemency, writing that military judge Col. Jefferson B. Brown had refused to allow "favorable defense evidence" and evidence that would have called into question the truthfulness of the accuser, Spinner said.

While many of the clemency letters came from friends and family of the Wilkersons, at least one came from a friend of the accuser, who did not know the Wilkersons. The woman wrote to Franklin that she and the accuser had exchanged multiple text messages on the evening of the incident and had spoken by phone around midnight. During the conversation, the woman offered to pick up her friend multiple times, she wrote, but her friend declined the offers.

The next day, according to the woman's letter, she took Wilkerson's accuser to seek medical care because she thought she might have been drugged. She wasn't, according to trial testimony.

Over the next several months, the woman said her friend gave varying accounts of what happened that night. She suggested her friend may have made up the story because her contract at work was up for renewal and an "inappropriate alcohol-related incident" could jeopardize it. The woman asked Franklin to reconsider the conviction and "provide an opportunity for justice for the Wilkerson family."

Wilkerson was released from the U.S. Consolidated Naval Brig in Charleston, S.C., the day Franklin dismissed the case — the equivalent of an acquittal, Spinner said.

Beth Wilkerson flew to Charleston to meet her husband the following day.

In a telephone interview, she said of the events of March 24: "I was awake. I was up. There was no way that this happened. I know it wasn't true. I was there."

Wilkerson planned to take some time off before returning to duty. It is not clear where he will go next. At the time of his arrest, he was a full colonel select, Spinner said.

"I'm so very thankful. I have prayed for this," Beth Wilkerson said. "We are very, very thankful to all our friends and family that supported us."

The lead prosecutor on the case, Col. Don Christensen, declined comment through a Pentagon spokesman.

Attempts to reach the alleged victim through email and Facebook were not successful.

In a statement to Stars and Stripes, she said she was shocked by the reversal. "I was assaulted. I reported it. I endured the public humiliation, and the end result is that it was all for nothing."

Staff writer jschogol@militarytimes.com?subject=Question from AirForceTimes.com reader">Jeff Schogol contributed to this report.

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