A Military-Justice Immelman?

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U.S. Army Air Corps

In flying, an Immelman is a kind of looping turn, popular during World War I, that sends an aircraft in the opposite direction.

Did the U.S. Air Force just pull an Immelman in the sexual-misconduct case of Lieut. Colonel James Wilkerson, a long-time F-16 pilot and formerly the 31st Fighter Wing’s inspector general – the chief Goody Two-Shoes — at Aviano air base, Italy?

It’s a case that’s stirred up controversy from that Italian base, 50 miles northeast of Venice, all the way to the U.S. Senate.

Here are the facts of the case:

Lt. Col. James Wilkerson


Lt. Col. James Wilkerson

Last March 23, an evening of music and drinks at a base club ended with a gathering at the home of Wilkerson and his wife, Beth. Another woman, a 49-year-old American physician’s assistant, who had met the Wilkersons that night for the first time, stayed behind after the other guests left.

She testified that she fell asleep in a guestroom and awoke after Wilkerson began sexually assaulting her. She said the incident ended when Wilkerson’s wife walked into the room and ordered the guest to leave. Both Wilkersons said James never left his bed that night. Beth said she got up about 3 a.m. and told the woman to go home.

A week-long court martial took place last fall. Chief prosecutor Colonel Don Christensen told the jury that the accuser had “zero motivation” to lie, Stars and Stripes, the independent military newspaper, reported. “To perjure herself and go through this process, destroy this man, destroy his wife, destroy his son — you’d have to believe [she] is pure evil, a spawn of Satan,” Christensen said.

Defense attorney Frank Spinner called the case against his client an “imagined sexual assault.” There was no physical evidence in the case; Wilkerson did not testify on his own behalf. As the alleged victim of a sexual assault, the accuser’s name is not being published.

An all-male jury – four colonels and one lieutenant colonel – found Wilkerson guilty Nov. 2 of aggravated sexual assault, abusive sexual contact and three counts of conduct unbecoming an officer and gentleman. They ordered him dismissed from the service and imprisoned for a year.

On Feb. 26, Air Force Lieut. General Craig Franklin reversed Wilkerson’s conviction. As the so-called “convening authority” in the case, he decided that the case should go to court martial, he chose the jury – and he has the power to overrule a jury’s finding. After reviewing all the evidence in the case – including some kept from the jury – Franklin threw out the conviction. He “concluded that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt,” the Air Force said in a statement. Wilkerson was promptly freed from the U.S. Consolidated Naval Brig in Charleston, S.C.

The reversal has generated anger from three U.S. senators – all female. “This is a travesty of justice,” Democratic Sens. Barbara Boxer of California and Jeanne Shaheen of New Hampshire wrote to Defense Secretary Chuck Hagel on Monday. “We ask that you immediately provide us detailed information regarding the basis for General Franklin’s decision, including whether you have the authority to overturn the dismissal of the case. In addition, we urge you, in the strongest possible terms, to take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.”

On Tuesday, Senator Claire McCaskill, D-Mo., took the opportunity to grill General James Mattis over the case, even though as a Marine — and the head of U.S. Central Command — he has no jurisdiction over it.



Lt. Gen. Craig Franklin

“With a stroke of a pen last week, a general dismissed those charges against [Wilkerson], a general with no legal training, a general that had not sat it the courtroom,” she told Mattis. “I ask you, General Mattis, isn’t it time — as we understand that the majority of homeless women in this country are veterans and that the majority of them had some form of sexual assault — that we look at the UCMJ [Uniform Code of Military Justice] and decide that we need to have something other than the arbitrary decision of one general, without any other supervising authority, any other procedure that is necessary, to actually overturn the very difficult decision that the jury came to?”

Mattis, who was there to discuss the war in Afghanistan and his 2014 budget, punted – but offered a defense of the UCMJ. “Senator, I do not know the specifics of this case, and I’ve always been reluctant to comment on something where I don’t know it,” Mattis responded. “But let me assure you, senator, that the Supreme Court has upheld what Congress has passed for the UCMJ, recognizing the unique aspects of the military. And in this case, there are more rights provided to defendants in the military, because no court system is more subject to being characterized as a kangaroo court than one where military officers who are in command also initiate it.”

Spinner, Wilkerson’s attorney, tells Battleland that McCaskill’s criticism is an “ignorant and prejudicial attack that is governed more by political correctness than truth.” Spinner says amid the outcry generated by the sexual-assault scandal at Lackland Air Force Base and elsewhere, “many lawyers in all the branches of the armed forces are being subjected to unlawful command influence and congressional pressure to take these cases to court, regardless of the questionable merits of the claims some women are making.”

Meanwhile, back at Tuesday’s hearing, McCaskill plainly realized that Mattis couldn’t help. For that, she acknowledged she’d have to speak with General Mark Welsh, the Air Force chief of staff. “General Welsh is going to be hearing from me about this particular general,” she said of Franklin. “I think it’s also interesting that both of these people are fighter pilots. They both have served together. And that adds more appearance of impropriety to this particular decision. And I’m going to ask General Welsh some very difficult questions.”


Lt Gen Franklin had to have known that when he threw out the findings of guilt in this case that he was essentially ending his own career. For that reason alone, it seems likely that he is being honest when he says that he simply felt there was not proof beyond reasonable doubt - essentially he believed the court-martial members ("jury") should have found reasonable doubt, but didn't, and he couldn't let their decision stand. That, whether his perception concerning the sufficiency of the evidence was accurate or not, was a courageous thing to do. Further, it was clearly in his authority to do. Congress gave him - and all convening authorities - the ability to review the decisions of court-martial panels precisely because of the danger that those "juries" might return indefensible verdicts. The reason military "juries" are susceptible to making the wrong call is multi-factorial. First, unlike most civilian jurisdictions, military panels do not need to be unanimous to return a guilty verdict - a 2/3 vote for guilty is sufficient, even on felony-level cases such as this. Second, unlike most civilian juries, military panels are comprised entirely of "company men" - career Soldiers, Sailors, Marines, or Airmen who are more likely than their civilian jury counterparts to believe the government is reliable. It is therefore arguable that military courts-martial panels might not give full weight to the principle that the accused should be presumed innocent. This bias for the prosecution is compounded when the case involves a hot-topic offense such as sexual assault. For years, in an effort to "change the culture" believed to be permitting and covering up sexual assault, each service has been drilling training into the entire force that victims must be protected and believed while offenders must be held accountable. That mantra has been drilled even more heavily into senior officers - the very sort of officers typically selected to sit as court-martial members. For senior officers, being seen as "tough on sexual assault" is a prerequisite to command. Basically, the military has - maybe unintentionally - biased court-martial panels before they ever step into the courtroom. Military members are adept at following orders and accomplishing the mission. Therefore, when they are told day in and day out (and arguably as a condition of their employment) that they are expected to believe and support alleged victims and hold alleged offenders accountable, they do so. Further, they do so regardless of how many times the military judge tells them to presume the accused innocent and to hold the government to the burden of proof beyond reasonable doubt. Given all of the above, it is entirely possible that Lt Gen Franklin did nothing wrong and instead made a courageous decision against his own self-interest to overturn a conviction where there was reasonable doubt but the jury failed to find it. I distinguish "reasonable doubt" from "innocence." Lt Gen Franklin did the right thing by overturning the conviction if he thought there was reasonable doubt, regardless of whether he believed the accused actually committed the alleged offense. After all, he was acting within a system of law, not a system of justice.


Until crap like this dismissal stops, neither will the military sexual assaults.  I hope General Franklin had no designs on a fourth star, because that's never happening now.  He'll have one of those quiet Senate holds put on him that no one talks about.


Mattis is wrong. Nothing about this case by itself is unique to the military. Giving commanders judicial powers only makes sense in cases that are about relatively minor disciplinary issues and things that arise from a military context. But this was no different from civilian cases with similar circumstances.

The lawmakers need to reform the so-called military "justice" system entirely. Not just for sexual assault, but for all criminal cases. Stop giving commanders such wide ranging powers. Have military law enforcement as investigators and the JAG corps as independent prosecutors. Analogous to how the civilian world work. The institutions already exist. They just need to be used properly. Mattis's answer is paradoxical here, since he seems to realize that it is a horrible idea to have the chain of command influence what should be an independent trial. Yet he defends it.


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