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Sunday, April 14, 2013

Military Sexual Assault Conviction and Sentence Overturned by Convening Authority in U.S. v. Lt Col James Wilkerson – An Officer Acts on his Personal and Professional Integrity and Conscience Instead of Public Opinion Pressures…Such a Welcome Novelty in Today’s Slanted Military Justice System!

A senior Air Force Officer, Lt Col James Wilkerson, who was represented by attorney Frank J. Spinner, has had his sexual assault conviction and sentence overturned by the General Court-Martial Convening Authority (GCMCA) in his case, Lt Gen Craig Franklin.  Some articles appear here:

Because Frank and I advertise together and are close friends, I initially remained quiet as the uproar involving this case unfolded.  However, if you search for “rape” or “sexual assault” in this blog search bar, you will see that I have been attempting to expose the truth about how the military justice system (mis)handles rape and sexual assault cases (UCMJ Article 120) for years.  This includes a DoD IG complaint I filed against all military branches in 2005.  

Contrary to the claims made by members of Congress and the propaganda film “The Invisible War,” the military justice system “bends over backwards” for any woman alleging rape and/or sexual assault.  There are scores of dubious sexual assault allegations that civilian prosecutors have refused to prosecute, but the military takes jurisdiction of and presses forward to trial.  There are the legally erroneous mandatory sexual assault briefings and training required to be attended by all who wear a uniform.  There are the advocates and counselors assigned to assist the complainants.  There are the investigators, legal offices and commanders who often send ridiculous cases to trial because they fear the public repercussions of dropping these cases.  There are the special reporting and handling requirements in these cases.  The USAF has begun a program where Air Force attorneys are assigned to represent complainants, in addition to the role of the Air Force prosecutors.  I won’t even go into all the problems this has already caused, and how this program is contrary to any American vision of a fair criminal justice system (see AFCCA decision in U.S. v. Daniels, and read the accounts/cases in the Air Force Trial Defense amicus brief).  I could go on and on. 

The message sent by the leaders of our civilian federal government and the DoD are clear and aggressively circulated – the military justice system only succeeds if rape and sexual assault allegations result in:  conviction, harsh sentence, and denied clemency.  Any other result is characterized by the loud voices of those in power as a failure of the military justice system.  Presumption of innocence, burden of proof, due process, the rights of the accused…all casualties in this crusade.  All that seems to matter, and the only scenario deemed a military justice system “success,” is conviction, harsh sentence, and denied clemency.    

Is there a problem in the military justice system?  Yes, there absolutely is.  But, it isn’t what those in leadership suggest; the pervasive problem is that the military justice system has sacrificed the Constitutional principles it was founded on to cater to public opinion pressure.  And public opinion is driven by the loud voices of those who have no idea what they’re talking about.  The unlawful command influence (UCI) of the leadership’s messages poisons the entire military justice system.  This drumbeat has continued unabated, and with increased volume, since, at least, the Air Force Academy “scandal” in 2003.  The public perception, and the image portrayed by those members of Congress who love to pontificate on matters they are ignorant about, is absolutely incorrect.  The military justice system caters to complainants and continues to pursue every possible angle to prevent cases from resulting in acquittal or dropped charges.    

There are a flood of rape and sexual assault allegations in the military.  There is no disputing that.  The reason for that flood of allegations is not an epidemic of actual rape and sexual assault.  Certainly, the military population, like all of society, experiences actual rape and other actual crimes.  However, there are not enough minutes in the day for me to describe all the false and dubious sexual assault allegations that are made in the military justice system.  And, the military justice system is largely to blame for this – as they continually misstate the law of alcohol, sex and consent in mandatory sexual assault briefings.    

In fact, in a recent general court-martial trial I defended against, a Squadron Commander stated during voir dire that she had just held a Commander’s Call and informed her entire squadron that consuming one alcoholic beverage renders a woman incapable of consent – that message is totally untrue and it is totally unbelievable that a squadron commander would spread it!  That is just one example in thousands.  That is an entire squadron who is now misinformed on the law of alcohol and sex, and they will spread this message to others in the ranks.  Do you see how this multiplies and spreads, and how it results in sexual assault claims by complainants who have been impacted by these erroneous briefings and the systemic push for convictions in alcohol/sex cases?  It’s a cancer on the system.

So, we turn to the case of U.S. v. Lt Col James Wilkerson.  I wasn’t at that trial.  I didn’t read the record of trial, or the clemency submission, nor will I.  I have my own cases/clients to focus on.  However, what I would suggest, that all the voices opposed to the Convening Authority’s (Lt Gen Franklin) clemency decision refuse to consider, is that maybe the conviction itself resulted from pervasive UCI and messages to those who sat on that court panel that the military justice system fails if they acquit Lt Col Wilkerson.  

Remember, unanimous verdicts are not required in the military.  We don’t know how the deliberations or the voting occurred in this case.  We don’t know how many initially felt an acquittal was appropriate based on the evidence, but either changed their vote or were impacted by the messages they have been subjected to within the military justice system.  

While politicians rant about Lt Gen Franklin substituting his opinion for the court’s verdict, maybe the incredible injustice in this case was the conviction/verdict itself, not the clemency that was approved.  Maybe Lt Gen Franklin not only saved Lt Col Wilkerson from an unjust verdict that would have destroyed his future, it vindicated a military justice system that is so in need of someone with the intestinal fortitude to stem the tide.   

The fact that a 3-star General Officer would feel compelled to have to write a 6 page explanatory letter to the SECAF shows how distorted the military justice system has become.  The new SECDEF has only added to the problem by his knee-jerk reaction of asking for the UCMJ to be changed.  Again, the message is clear…the right to clemency in the military justice system is fine, so long as clemency is denied.  Approved clemency is characterized as a failure of the system.   

For those of us who care about the military justice system, what we see happening is sad and disgusting.  Regardless of the intentions, the system has been high jacked by those who value public opinion (no matter how inaccurate) over systemic fairness.  

This statement (blog post) is mine alone.  Frank Spinner did not see it, or even know about it before it was posted.  He has been traveling for his military cases.  I have been traveling for mine.  However, what happened in U.S. v. Wilkerson is affecting all alleged rape/sexual assault cases in the military justice system, which is what motivated me to post something about it.  The system needs more commanders like Lt Gen Craig Franklin.  The system needs more voices like his.  But voices like his are being drowned out, and have been for years.  In his clemency decision, Lt Gen Franklin was guided by his personal and professional integrity and his conscience.  Sadly, he is in the overwhelming minority in today’s military justice system. 

Regardless of whether SECDEF Hagel’s requested changes to the UCMJ are passed into law, I doubt we see clemency granted in cases such as U.S. v. Wilkerson again. That is the final injustice in U.S. v. Wilkerson.  Innocent military men will be convicted and go to prison, and loud proclamations of “success!” will echo through the hollow military justice system.  

(And, before you read this and chalk it up to another misogynistic man who can’t understand the circumstances of women in the military, please understand that I have female family members and many female friends and associates who wear the uniform.)

By: Attorney Richard V. Stevens

Civilian criminal defense lawyer and military defense lawyer

Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: Attorney Frank J. Spinner and I (attorney Richard V. Stevens) are former active duty military lawyers (JAG). Our perspectives and advice, therefore, are based upon our experience as military defense lawyers and as civilian criminal defense lawyers practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens and The Law Office of Frank J. Spinner for a free consultation. These military defense law offices are located in Colorado Springs, Colorado and Southern New Jersey, but the military defense representation is worldwide – when necessary, the attorneys travel to wherever the client is stationed.

1 comment:

Bob S said...

A wonderfully written article about a serious problem that is worsening by the day in the United States military. It is sad that most American are completely unaware that this travesty even exists....until someone they know or care about get tangled up in this mess. Men who came to serve their country are now being tossed aside like yesterdays trash, their futures destroyed and being branded with the scarlet letter of a sex offender. All the while the bandwagon is overflowing with politicians and media, bloviating about subjects of which they have no knowledge, in the name of ratings and votes. I wonder how they can look at themselves in the mirror without regurgitating.