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Court-martial, then clemency: Is this justice?

Mar. 11, 2013 - 10:09AM   |  
Lt. Gen. Richard Harding
Lt. Gen. Richard Harding (Michael Pausic / Air Force)
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Soon after the Feb. 26 decision by the 3rd Air Force commander to overturn a high-profile sexual assault conviction, Tech. Sgt. Jennifer Robinson received a note from the Vandenberg Air Force Base, Calif., advocate who had seen her through an ordeal more than two years earlier.

The advocate, a sexual assault response coordinator, wanted to set up a meeting with Robinson. Inside her office, she showed the technical sergeant a newspaper story about an Aviano Air Base, Italy, lieutenant colonel freed from a military prison less than four months after a jury convicted him of accosting a sleeping woman in his home. The commander, Lt. Gen. Craig Franklin, had exercised a little-known but long-held authority to set aside a court-martial verdict, known as clemency. The unusual move set off a firestorm among victim advocates and some lawmakers, including at least one congresswoman who called for Franklin's removal and a change in the law.

At the Vandenberg office, Robinson said, she cried. A captain had stood trial at the base in October 2011 on charges he sexually assaulted Robinson and a first lieutenant one year apart. A jury of officers convicted the captain for the assault on the lieutenant but acquitted him on the charges related to Robinson. He was sentenced to 60 days confinement and a dismissal from the service, an outcome with which Robinson said she was satisfied.

As in the Aviano case, the three-star general in charge of the command — the convening authority — cleared the captain four months after the verdict.

Robinson said the similarities left her reeling.

“People don't understand it happens,” she said.

Air Force officials and military law experts say clemency is as rare as it is unique.

“You won't find a parallel outside the military,” said The Judge Advocate General Lt. Gen. Richard Harding, the Air Force's leading legal authority.

Clemency was granted in five of the 327 Air Force sexual assault convictions in the last five years — less than 2 percent of the time, Harding said. The Aviano and Vandenberg cases accounted for two of those. The three others involved an airman first class and a senior airman at Joint Base Elmendorf-Richardson, Alaska, and a technical sergeant at Cannon Air Force Base, N.M. Only the senior airman had his conviction reversed; the others saw their charges reduced to lesser offenses, according to information provided by the Air Force.

The service could not immediately provide the total number of clemencies.

In 2011, the head of the 18th Air Force cut a former enlisted leader's sentence from 20 months to four and changed a jury's sentence of a dishonorable discharge to a bad-conduct discharge. In that case, ex-Chief Master Sgt. William Gurney, former command chief of Air Force Materiel Command, was convicted of 15 sexual misconduct charges, none of which involved assault.

‘Mission has not changed'

Military justice begins and ends with the commander. If he or she decides to pursue charges against a service member accused of a crime, the case next goes to a special court-martial convening authority — usually a colonel in the Air Force — who either dismisses the charge or sends it back to the commander for administrative action or to an Article 32 hearing, the civilian equivalent of a preliminary or grand jury proceeding. If convicted at court-martial, a defendant can apply to the commander for clemency.

In a clemency review, the commander looks not only at the record of trial but other evidence the defense puts forward, which can include character letters and evidence ruled inadmissible at trial.

The same consideration is not afforded to victims. Harding, the TJAG, said victims are consulted throughout the judicial process but that it would be unusual for a letter from a victim to be included in the clemency package.

The commander can then single-handedly reduce or set aside sentences or overturn the conviction, an authority that, in this country, dates to 1775 and was adopted as part of the Uniform Code of Military Justice in 1950.

Eugene R. Fidell, a former Coast Guard judge advocate who teaches military law at Yale University, said that authority has largely been done away with in New Zealand, Israel, Canada and Great Britain. In 1996, the United Kingdom Armed Forces Act largely removed from the military chain of command the convening authority, court members and prosecutors. The system is now more reflective of the European Convention on Human Rights, Fidell said.

The U.S. military justice system has been “deeply resistant” to change, Fidell said, resulting in “unbridled discretion.”

“In a way, it's another aspect of the command-centric nature of American military justice as currently designed,” Fidell said. “One of the great trends in military justice over the last couple of decades is to dramatically reduce the discretion of convening authorities. I think the notion is [that] decisions as to who gets tried are essentially legal decisions that ought to be made by attorneys. At the other end, the sense is that if you have a convening authority able to nullify a decision of a court-martial, it is irreconcilable with the independence of the judicial function.”

Multiple members of Congress have called on Defense Secretary Chuck Hagel for a review of Franklin's decision, which is final. At least one lawmaker, Sen. Claire McCaskill, D-Mo., wants commanders stripped of clemency authority. She was scheduled to meet March 12 with Secretary of the Air Force Gen. Mark Welsh to discuss the case after learning about it in news reports.

“As someone who spent a lot of time in the courtroom prosecuting rape, sodomy and sexual assault cases, I am offended that a jury — by the way, a jury selected by the same guy — convicts this man of sexual assault, and then it is undone with the stroke of a pen,” McCaskill told Air Force Times. “I understand the latitude commanders need. On the other hand, we've got a pervasive problem of sexual assault in the military. The last thing we need to do is wipe a conviction clean in a way that looks arbitrary.”

In a March 4 letter to Hagel, Sens. Barbara Boxer, D-Calif., and Jeanne Shaheen, D-N.H., said Franklin's decision is “simply unacceptable and raises serious concerns about the military justice system as a whole.”

Sexual assault in the ranks has been an increasingly frequent topic in recent years, with high-profile reports on assaults in the war zones, aboard ship, at basic training and at the service academies.

At the same time, how sexual assault complaints are handled in the military has become an increasingly contentious issue. Victims' advocates contend the services have a long history of downplaying the problem, often protecting the accused and retaliating against accusers.

Some military members accused of sex assault, conversely, say they were unfairly prosecuted in “he said, she said” cases by prosecutors determined to show they took the accusations seriously.

The military has made several changes in how it handles sexual assault cases, including raising the level at which they are investigated. The Air Force this year launched a pilot program to provide sex-crime victims with their own attorneys in an attempt to bring more perpetrators to justice. About a third of victims who initially agree to cooperate in the investigation changed their minds before court-martial in fiscal 2011.

“Before we conclude [the law] needs to be changed, we need to consider the 238-year track record … that has produced wonderful results for our country,” said Harding, the Air Force TJAG. “The mission [of the military] has not changed.”

Physical evidence lacking

There was no physical evidence in the Vandenberg case or the case at Aviano, both of which ultimately came down to the word of the accuser against the word of the accused.

At Aviano, an American civilian physician's assistant accused Lt. Col. James Wilkerson of climbing into a bed and touching her sexually without her consent after an impromptu gathering at the Wilkerson home on the night of March 24, 2012. She alleged he stopped when Wilkerson's wife walked into the room, turned on the lights and ordered her out. At least a majority of a jury, made up of four colonels and one lieutenant colonel, found him guilty of the charges. Verdicts do not have to be unanimous in a military court.

Wilkerson and his family have maintained his innocence, insisting Wilkerson never left his own room that night. The dismissal of the case amounts to an acquittal.

Franklin, the commander, said through a spokesman that he reversed the verdict because there was not enough evidence to support a finding of guilty. He would not elaborate.

At Vandenberg, Robinson said a mutual friend in October 2010 introduced her to the captain she said later assaulted her. According to the record of trial, Robinson went back to the captain's house after a night out that included drinks at a neighborhood bar. She testified she went up to his bedroom and told him she just wanted to sleep. He ignored her protests to his sexual advances, Robinson testified, and stopped after the captain's roommate began banging on the door. The roommate testified she'd heard what sounded like someone crying.

Robinson, who serves as the noncommissioned officer-in-charge of the mental health clinic at Vandenberg, said she doesn't remember many details of that night. She said she remembers fleeing the house and trying to find someone to help her. When no one did, she ran two miles home and called the police.

A lieutenant testified that she had fallen asleep while riding with the captain in the back seat of a car one year earlier. She woke to find the captain's hand down her pants. She said she pushed him off her and said nothing. The lieutenant told investigators what happened months later, only after they questioned her about it.

The prosecutor called it a case “about crossing the line.” The defense said both women consented. The jury decided Robinson had consented but the lieutenant hadn't, sentencing him to 60 days confinement, a reprimand, forfeiture of $2,500 a month for two months and dismissal, the equivalent of a dishonorable discharge.

He was immediately taken into custody to serve out his sentence. Robinson assumed she'd never see him again.

The captain remained on base after his release from jail while the commander considered his clemency request.

Lt. Gen. Susan Helms, commander of 14th Air Force at Vandenberg, considered the case carefully for five weeks, Space Command spokeswoman Lt. Col. Kathleen Cook said in an email. She “concluded that she could not be satisfied the beyond-a-reasonable-doubt burden of proof had been met and therefore declined to approve the conviction.”

Helms instead punished the captain administratively. He was kicked out of the service in December 2012.

Robinson said she was not consulted during that process — which she would like to see changed.

“I ran into him [at Vandenberg] in uniform. I ran into him quite a few times after that. Each time, it was like a meltdown for me,” Robinson said.

Once, she found herself having to salute him, she said.

“It felt like my power was gone,” Robinson said. “The Air Force says the victim has a voice. I didn't feel that way.”

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