A Military-Justice Immelman?

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:

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.

“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.”