Don Christensen felt like a man unburdened.
On a cold day in early December, the former Air Force chief prosecutor sat at a table inside the tiny Washington office of the victims advocacy group of which he had recently been named president.
He'd traded his dress blues for a charcoal suit, a clean-shaven face for a closely cropped beard. Gone, too, were Christensen's measured remarks on the case that would define his 23-year career as a judge advocate general and put him at odds with the institution to which he'd devoted half his life.
For more than a year, in the rare moments he spoke publicly about his successful November 2012 prosecution of a lieutenant colonel on sexual assault charges — and a three-star general's reversal of the conviction less than four months later — Christensen's words came with a disclaimer. He was speaking for himself, he'd say, and not the Air Force.
But his military service was behind him now, and he was ready to speak freely.
One day earlier, on Capitol Hill a few blocks away, Christensen had joined a bipartisan group of senators who were again calling for a military justice system where prosecutors, instead of commanders, decide whether serious crimes like sexual assault and rape should go to court-martial. Military brass had overwhelmingly bristled at the notion, writing letters and testifying before Congress that commander authority was vital to maintaining good order and discipline within their ranks.
It was his first public appearance as president of Protect Our Defenders. He'd stood next Sen. Kirsten Gillibrand, D-N.Y., author of the stagnant Military Justice Improvement Act, and listed off his experience as an Air Force defense counsel, prosecutor and judge. He'd described how the current system still allowed sexual predators to operate with near impunity in the military despite a litany of recent changes meant to better protect victims and hold commanders accountable.
But those commanders continued to tilt the balance in favor of the accused, Christensen said. He'd watched it in the now-infamous case of the lieutenant colonel convicted by peers at court-martial, then cleared by a general. He'd seen it in the final sexual assault case he prosecuted as an Air Force JAG.
The newly retired colonel no longer believed he could make a difference fighting for victims on the inside.
Christensen would divide his time between his native South Dakota and Washington and wherever else the new job took him, from speaking engagements — he would catch a plane in a few hours to make a fundraising event in San Francisco — to meeting with lawmakers and helping build on a pro-bono network of attorneys for victims of military sexual assault.
The significance of Christensen's move to the outside was not lost on Gillibrand.
"With his unparalleled experience and knowledge on this issue, Col. Christensen's presence in this debate is extremely meaningful," Gillibrand's spokesman, Glen Caplin, said Jan. 2. "He has a great ability to dispel the myths and spin and explain how things really work. Also, he loves the military deeply, and the fact that after 23 years of service he concluded the only way to fix the system is from the outside because it is so broken speaks loudly."
Christensen's military service was rooted in tradition. His father was an Air Force navigator during the Vietnam War; his grandfather, an intelligence officer in World War II.
When Christensen began his own military career in July 1991 after earning a law degree from Marquette University Law School in Wisconsin, he was too busy trying to learn the military justice system to think much about whether it had kept up with the times. That introspection came later — and it did not happen all of a sudden.
While most Air Force JAGs move on to various advisory assignments after a few years of trying and defending cases, Christensen remained active in the justice system. He spent four years as a defense counsel, served a stint as a military judge — where he presided over some 100 cases — worked as a chief circuit trial counsel in Europe and, in 2010, became the Air Force's chief prosecutor.
As Christensen's career evolved, so did how he thought about the job he was doing. "It came to a point where I started asking why do we do this, why do we do that."
Not everything made sense. Until recently, an airman's good military character could be used as grounds for acquittal. Generals, not lawyers, decide whether to investigate a case and send it to court-martial. They approve pre-trial agreements and approve or disapprove testimony of an expert witness — all, Christensen said, with little more expertise than a two-hour military justice briefing by a JAG who hasn't been in the courtroom in years.
"I've seen cases where you're delayed by days waiting for a general to make a decision, and you have experts sitting there getting paid almost $3,000 a day. And he's [the general] off doing other general duties and can't be bothered by it. It's a cumbersome system."
If a prosecutor believed there was not enough evidence to support a charge, he or she had to convince a general to drop it.
"That's definitely not fair to the defense," Christensen said. Commanders "have such control over the process."
Then there was the way commanders sometimes treated victims of alleged sexual crimes — siding with and supporting the accused. It bothered him so much, he said, he'd brought it up to his leadership more than once. His complaints "never went anywhere."
When he brought up ways the system might work better, he said, his leadership proved "very resistant. The status quo is just what they wanted. They didn't want to have any change."
Christensen recalled a case he prosecuted years ago in which an airman was charged with raping his daughter. "It was going to be a tough case for us. But she [the victim] was very compelling."
The airman's commander preferred charges against him. Yet when the case went to trial, the same commander sat behind the defendant and brought him water, the prosecutor said. When a not guilty verdict was announced, "this commander leaped out of his chair, both arms in the air, and screamed 'yes!' It was such a spectacle the judge almost held him in contempt," Christensen said.
Such support was not new or unheard of, he said, and it destroyed the work of great commanders who worked hard to remain fair and unbiased.
More than two decades inside the system could not have prepared Christensen for the case of former Lt. Col. James Wilkerson, a popular F-16 pilot and Aviano Air Base, Italy, inspector general who was accused of sexually assaulting a house guest in March 2012.
When Christensen, by then a colonel, was summoned to Europe to prosecute Wilkerson, he'd been serving as the Air Force chief prosecutor for two years and was trying only a handful of cases. He was also an expert in sexual assault cases, having served on both sides, and this case was not unlike the dozens he'd defended and prosecuted and presided over.
Wilkerson allegedly got into the bed of sleeping house guest Kimberly Hanks, who said she awoke to find the fighter pilot with his hands down her pants and his stunned wife in the doorway. A month before, Christensen had successfully prosecuted another lieutenant colonel for molesting a young boy.
The Aviano staff judge advocate requested Christensen's assistance on the case because of Wilkerson's rank and position, and because the former vice wing commander, a colonel who'd driven Wilkerson and a group of others back to the Wilkerson's home that night, was expected to testify.
Hanks, who would go public after the conviction was overturned, "was an exceptionally credible witness," Christensen told Air Force Times in April 2013. And in cases where there is no physical evidence, the verdict often comes down to the victim's believability.
Hanks, a 49-year-old American physician's assistant who worked at the base hospital, saw a nurse the morning after the ordeal and made a report soon after. Her story, Christensen said, never wavered.
Wilkerson adamantly denied in a recorded interview with investigators that he'd ever left his own bed that night. His wife, Beth, repeated that account on the stand.
A panel of senior officers sided with the victim, convicting Wilkerson of aggravated sexual assault Nov. 2 after a weeklong trial. He was sentenced to a year in prison and dismissal from the Air Force, stripping him of his retirement.
Christensen figured that was the end of it, barring, of course, any adverse ruling by the appellate court during Wilkerson's likely appeal. But the case never got that far.
On Feb. 26, 2013, Third Air Force commander Lt. Gen. Craig Franklin exercised his power as the convening authority to overturn the verdict and reinstate Wilkerson into the Air Force. The general based the decision in part on his own three-week review of the evidence and, as Franklin would later write in a memo to then-Air Force Secretary Michael Donley by way of explanation, on "the most extensive clemency package request" Franklin and his staff judge advocate had ever seen.
Ninety-one clemency letters — a third of them from current and former commanders and three from general officers — "painted a consistent picture of a person who adored his wife and 9-year-old son, as well as a picture of a long-serving professional Air Force officer," wrote Franklin, who after his decision worked to get Wilkerson promoted and back in the cockpit of the F-16 both of them flew.
The backlash from Congress and victim advocacy groups — Protect Our Defenders included — was swift. The outcry intensified in June 2013 when the Air Force announced Wilkerson, while married, had fathered a child by a woman other than his wife nearly a decade before.
Four months later, he was reduced to the rank of major and forced to retire from the military. Franklin announced his retirement last January after Air Force officials reinvestigated a sexual assault case he'd declined to prosecute. Because he had not yet held the rank of lieutenant general for three years, he would leave the service as a two-star.
But the impact of the Wilkerson case would have more far-reaching effects — on military justice and on Christensen himself.
"When Franklin did what he did," the retired chief prosecutor said, "that was like a light going [on]."
When outraged lawmakers passed the 2014 defense spending bill, it included fundamental changes to the military justice system. No longer can a commander overturn a court-martial conviction. Cases trigger a civilian review when a prosecutor wants to take a service member to trial but a commander does not. It is a crime to retaliate against a victim. Troops convicted of a sexual assault face mandatory dishonorable discharge. And victims of sexual offenses must have access to their own specially trained attorney who reports to an independent chain of command — a program piloted and popularized in the Air Force through which more than 1,200 airmen have received representation.
Victims who have their own attorneys are much more likely to convert a restricted report to an unrestricted report, the latter of which launches an investigation — and makes it possible to hold the offender accountable. Under a restricted report, victims get access to care but law enforcement is kept out.
Within the Air Force, there were other efforts: the creation of a sexual assault prevention and response office headed by a two-star general and staffed with more than 30 experts at the Pentagon; increased funding and training for first responders, from victim advocates to security forces to investigators; stand-down days, awareness campaigns and sweeps of office spaces for materials degrading to women. Unit climate assessments gauge whether commanders are creating an atmosphere of dignity and respect for all.
"I genuinely believe 98 percent of commanders want to help victims," said Maj. Gen. Gina Grosso, head of the Air Force's SAPR office.
Indeed, Air Force victim surveys show high marks for commanders when it comes to how they are treated, said Col. Chuck Killion, director of the Air Force judiciary. Bad experiences should be used as an opportunity to improve the system, he said, not indict it.
A new report by the Defense Department — released the same week Christensen made his debut on Capitol Hill — show the changes and efforts at every level of the Air Force may be having an impact. About 800 fewer airmen had experienced unwanted sexual contact in 2014 than in 2012, the last time they took the survey. That was about a 25 percent drop for women and a 14 percent drop for men. Meanwhile, reporting of sexual offenses increased by 61 percent — indicating more trust in the system.
Military leaders across the services were careful to say that even one sexual assault is too many, that while encouraged by the latest survey results, there is more work to be done. They listed off more programs to come, programs that would make unit leaders more capable of communicating the importance of prevention and response and putting a dent in retaliation against victims.
Of 2,300 active-duty troops who participated in a Military Times poll, released last month, nearly all said their unit had conducted sexual assault training, though only 48 percent said they believed it was effective.
Still, from the outside, it looked as if all the efforts of the last two years were paying off, that the military services had at last gotten a handle on a crime they had overlooked far too long. Sen. Claire McCaskill, the Missouri Democrat who has supported keeping sexual assault allegations within the chain of command, touted the decline of incidents and rise in reports "exactly the combination we're looking for."
But from Christensen's ringside seat, little had changed. Air Force leaders continued to wield their influence in favor of the accused, he believed.
He pointed to a case earlier this year in which two retired generals — including retired Air Force Chief of Staff Gen. Norton Schwartz — wrote letters on behalf of a chief master sergeant charged with rape, sodomy, and obtaining sex by threat of force or death. (Schwartz declined to comment for this story.)
An Air Force judge ultimately dismissed the charges against the chief due to a loss of confidence in the prosecution.
"What impact it had on that judge to have a four-star general writing on the accused's behalf — I don't know," Christensen said.
The final case Christensen would try as an Air Force JAG last April took him to the base where he'd begun his career 23 years earlier — Ellsworth Air Force Base in South Dakota.
By then, he'd talked to members of Congress about the Wilkerson case — at their behest, he said. He'd been in contact with Protect Our Defenders after Hanks, the Aviano victim, requested Christensen speak to the group, and he'd been impressed by founder Nancy Parrish, the daughter of a veteran. He'd stated publicly more than once that he did not believe commanders should have the power to overturn a court-martial conviction. And, in February, he'd confronted Franklin after the two of them ended up on the same U.S.-bound plane from Ramstein Air Base, Germany.
Christensen had taken a hop across the Atlantic to attend the promotion ceremony of his co-counsel on the Wilkerson case and to do some sight-seeing with his son. Franklin was on his way home, having recently announced his retirement in the wake of the latest uproar over his decision not to send an airman accused of sexual assault to court-martial.
After clearing customs in Baltimore, Christensen said, he asked Franklin for a minute of his time. Franklin obliged.
"Sir, you blew it," Christensen recalled himself saying. "There was no doubt Wilkerson was guilty. Everything you said in the memo was wrong. If you'd just called me, I could have walked you through everything."
Franklin said he didn't know he was allowed to call the chief prosecutor. Christensen told him that he was.
Franklin said Wilkerson had a lot of support, that an Air Force general had called into question the victim's credibility.
"He had the support of his friends," Christensen responded. "That's what we expect friends to do. I don't go into court trying to convince the accused's friends he's guilty."
"Sir," the prosecutor continued, "this has impacted a lot of people's lives. A lot of people are paying a price."
Franklin said that he was one of them; the ordeal had cost him a rank.
Franklin declined to comment for this story, stating in an email that it would be inappropriate as a former court-martial convening authority to speak in the media on any case in which he'd played a role.
Christensen believes his forceful position on the Wilkerson case and his sharp criticism of the way in which the Air Force handled sexual assault cases hurt his career. A month after the airport meeting with Franklin, Christensen said, he received a downgraded performance report from his commander in what he considered another indication he was no longer wanted in the Air Force.
Prior to Wilkerson, he'd been active in the Air Force JAG office about the best way forward in the fight against sexual assault. "That engagement started drying up," he said. And though Christensen was the chief prosecutor for the Air Force, he was given no speaking role at a worldwide staff judge advocate sexual assault conference in December 2013.
"I wasn't spouting the company line that commanders are wonderful and should be in charge," Christensen said.
Soon after the downgraded performance report, he learned he was being reassigned to the Air Force Court of Criminal Appeals.
"I did not look at that as a good assignment," he said. "I would sum up the service courts this way: They have a lot of great judges — some of these guys are best friends of mine — but it is not taken seriously by Air Force leadership."
When asked about the impact the assignment may have on a JAG's career, Air Force spokesman Lt. Col. Chris Karns said appeals court judges have gone on to some of the top jobs in Air Force justice. "There is no one path to a successful military career," he said. "Doing the best you can in the position you are asked to serve is success in itself."
Christensen said there would be little, meaningful work he could do on the appeals court for at least a year. He'd have to recuse himself from any case he'd worked on as chief prosecutor — and that was a lot. "It was time for me to go."
His final case
But first, there was the final case at Ellsworth. To Christensen, it would demonstrate much of what was wrong with military justice, why serious crimes like sexual assault should be handled by an independent prosecutor rather than a commander.
The Air Force, in its monthly release of sexual assault convictions — another initiative begun by the service in 2013 to hold offenders accountable — provided a short synopsis of the case of Capt. David Brooks:
Early on the morning of April 13, 2013, after a night of socializing with other officers from the squadron, the victim awoke on Brooks' couch to find him touching her private parts.
Both the victim and the accused, as well as other officers from the squadron — including squadron commander Lt. Col. Stuart Newberry — had taken part in a pub crawl that had begun at a strip club, Christensen said. "Like a lot of our victims, she struggles with what to do. Then she reports it."
In response, Newberry gave the victim a no-contact order, "which I've never seen in my career," the prosecutor said. "We're not worried about the victim going after the accused. We're worried about the accused going after the victim."
Newberry testified on Brooks' behalf at court-martial, where a panel in April found the captain guilty of abusive sexual contact and sentenced him to 45 days in jail and a reprimand. Newberry testified again at Brooks' discharge board, as did at least half a dozen squadron mates, one of whom called Brooks "the best officer" he knows, said Christensen.
Brooks was ultimately kicked out of the Air Force. Newberry, who declined to comment for this story, later left Ellsworth for a one-year fellowship at Harvard — but not, Christensen said, before issuing the victim performance feedback telling her she was too emotional.