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Case shows impact of year-old special victims counsel

Jan. 22, 2014 - 07:48PM   |  
Lt. Gen. Craig Franklin
Lt. Gen. Craig Franklin (Air Force)
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A YEAR OF CONTROVERSY

Key events in the first year of the Air Force’s special victims counsel program:
2012
Nov. 2: Lt. Col. James Wilkerson, Aviano Air Base, Italy, inspector general, is convicted by a five-member military panel of sexually assaulting a houseguest. He is sentenced to a year in confinement and a dismissal.
2013
Jan. 4: The Air Force announces the launch of a special victims counsel program, becoming the first of the services to provide attorneys free of charge to victims and alleged victims of sexual assault. Sixty judge advocates are trained for the job.
Feb. 26: Lt. Gen. Craig Franklin, Third Air Force commander, takes the unusual step of overturning Wilkerson’s conviction, fueling a firestorm already raging in Congress about how the military handles sex assault.
Wilkerson is released from a military brig and reinstated in the service.
May: The Air Force announces 300 airmen elected to be represented by a special victims counselor in the first 16 weeks of the program. The job of the lawyers goes from part-time to full-time, with 24 special victims counselors and 10 paralegals representing airmen around the world.
June 13: The Air Force confirms Wilkerson fathered a child with a woman he was having an affair with some nine years before. He is forced to retire Jan. 1, 2014, as a major.
Lawmakers and victim advocates call for Franklin’s removal.
July 18: A U.S. Court of Appeals for the Armed Services rules an alleged rape victim in the Air Force has the right to have her own attorney represent her in certain pretrial matters, affirming the role of the newly formed special victims counsel program.
September: At the recommendation of the investigating officer, but against the recommendation of the special court-martial convening authority, Franklin dismisses rape and related charges against Aviano Airman 1st Class Brandon Wright.
The accuser’s special victims counselor objects in a 12-page memo that complains about the conduct of the investigating officer. The case is transferred to Air Force District Washington commander Maj. Gen. Sharon Dunbar, who recommends a new Article 32 hearing.
2014
Jan. 8: Franklin announces his retirement. “My judgment has been questioned ... as a general court martial convening authority,” he says in a statement. “The last thing I want in this command is for people to feel they cannot bring a sexual assault case forward or feel it won’t be dealt with fairly.”
Jan. 14: Wright’s second Article 32 hearing begins at Joint Base Andrews, Md., where an investigating officer will again recommend whether the case should go to court-martial.
_____

At first, it seemed the airman would escape the charge that he had raped a co-worker. The investigating officer didn’t think there was enough evidence to send the case to court-martial and recommended tossing out the charge. In September, Lt. Gen. Craig Franklin, the general court-martial convening authority, agreed.

The case wasn’t over yet, though.

The accuser’s specially appointed attorney said her client hadn’t gotten a fair hearing. And Franklin, already at the center of a firestorm over the military’s handling of sexual assault, had ignored a request to meet with the alleged victim before dismissing the charge.

The Air Force took the extraordinary step of reinvestigating the case, and in September, transferred jurisdiction to Air Force District Washington commander Maj. Gen. Sharon Dunbar.

On Jan. 14, prosecutors got a rare second chance to make the case against Airman 1st Class Brandon Wright, accused of raping a fellow airman while they were stationed at Aviano Air Base, Italy.

The case is one of the most high-profile examples so far of the impact of the Air Force’s year-old special victims counsel program, which provides lawyers to airmen who say they were sexually assaulted.

But as Wright’s new Article 32 evidentiary hearing began at Joint Base Andrews, Md., his attorneys objected, saying Wright shouldn’t have to answer to the rape charge twice.

“The accused has been through this route ... to the point the convening authority made the decision not to prosecute,” said Greg Rinckey, a former Army judge advocate now in private practice. “Now it’s been pulled to a different convening authority, a second Article 32. And he’s being put through the wringer again.”

Alleged victim 'ignored'

An investigating officer has the job of reviewing the evidence and making a recommendation to the convening authority whether to send a case to court-martial or dismiss the charges.

Capt. Maribel Jarzabek, the special victims counselor for the accused in the Wright case, said it was clear what the investigating officer was going to recommend during the first Article 32 hearing.

Air Force Times is not naming the alleged victim because of the sexual nature of the alleged offense.

“The investigating officer was badgering her” about how long the assault lasted, Jarzabek said. “He was incredibly biased” and asked questions that violated her privacy, she said.

Jarzabek submitted a 12-page memo outlining the issues. The alleged victim also requested to speak to the convening authority before he made a final decision; if the request was denied, she asked that she be able to submit a letter.

“We were ignored,” Jarzabek said.

The investigating officer recommended dismissal of the charges to the special court-martial convening authority, 31st Fighter Wing commander Brig. Gen. Jon Norman. After Norman’s review of the report and evidence, he recommended the case go to court-martial.

The final decision rested with Franklin, who sided with the investigating officer.

Jarzabek said she didn’t learn until three days after Franklin’s ruling that Norman had recommended going forward with the case.

“We were never informed of that decision from anyone at the 31st Fighter Wing or the Third Air Force level,” she said in an email.

The service’s top lawyer and the commander of U.S. Air Forces in Europe took another look at the “conduct of the proceedings and were not satisfied the victim’s views were fully heard,” Air Force spokeswoman Ann Stefanek said in an email.

The subsequent decision to transfer jurisdiction of the case was extraordinary.

“What is unusual is having a convening authority decide not to prosecute and then [the Air Force] pulls it away,” Rinckey said. “It’s a really different situation. It’s not a case of coming back with new evidence — all of a sudden the sheets reappeared with DNA evidence. People get that. This is more, ‘Was the guy who made the decision fair?’ ”

Franklin set off a chain of events a year ago when he overturned the sex assault conviction of former Aviano inspector general and F-16 pilot Lt. Col. James Wilkerson, in part because the general believed Wilkerson was a devoted father and husband. Four months later, the Air Force announced Wilkerson had fathered a child with a woman with whom he was having an affair some nine years before.

Franklin’s decision led to sweeping changes to the Uniform Code of Military Justice.

“The Air Force realized there were some issues here and no matter what Franklin did — if he refused to prosecute or if he prosecuted — there were going to be issues,” Rinckey said.

“Part of the problem here, too, is Franklin refused to meet with the victim. I think that was a blunder on his part. If he was leaning toward not prosecuting, he should have at least met with her. Some say that is required,” Rinckey said. “Mix in the politics of everything that’s going on with the military being in the limelight for sexual assault, and then add General Franklin to the mix — this probably should have been pulled from him a while ago.”

New investigation

Wright’s defense took no issue with the way the first decision played out.

“We do object to this hearing generally. We’ve already been through an Article 32. We thought that was conducted properly,” defense attorney Maj. Dominic Angiollo said at the outset of the new hearing.

“That’s all they can do,” Rinckey said. “They can’t not participate. These are criminal proceedings. They’re going to note their objections. No matter what happens, there is going to be an appeal issue. They [defense lawyers] are going to say this was unlawful command influence, that there was pressure on the new convening authority, pressure from the highest levels of the Air Force, pressure to prosecute.”

At the hearing, new investigating officer Lt. Col. Shaun Speranza attempted to assure Wright and his defense.

“No one has discussed this case with me or what the outcome should be,” Speranza said. “I can assure you there has been no attempt whatsoever to influence my impartiality.”

Jarzabek, the accuser’s attorney, said the new hearing underscored the importance of assigning lawyers to airmen who report being sexually assaulted.

“All she can ask for is a fair hearing, and that’s what we’re getting right now,” Jarzabek said. “The process is working. Her voice was heard.”

Air Force prosecutors called seven witnesses Jan. 14, including the accuser, who testified she and Wright and another co-worker, Senior Airman Shaun Sosa, had spent the evening leading up to the alleged July 2012 rape watching movies and drinking alcohol at her apartment near Aviano.

When Sosa left the living room after the movies concluded, the alleged victim said, Wright forced himself on her. She said she repeatedly told him to stop and tried to get away. In the end, she testified, she “froze,” unable to cry out for help.

Sosa testified he was just feet away in the kitchen when the alleged assault occurred. He said he believed Wright and the accuser were engaged in consensual sexual activity.

Wright’s defense suggested the female staff sergeant had a motive to lie about the events of the night because she was drinking alcohol with subordinate airmen, for which she has never been punished. The defense also pointed out that she received an expedited transfer back to the U.S., where her fiance and daughter were living.

As in the first Article 32, the investigating officer will recommend whether he believes there is enough evidence to send the case to court-martial. The new special court-martial convening authority, Col. William Knight, will then make his recommendation. That could take weeks.

“If they prosecute and there’s a conviction, the defense is going to have a pretty strong argument this was undue command influence, that there was unfair pressure to prosecute. If it goes the other route, and they decide not to prosecute or there is an acquittal, the victim will say this was just a whitewash,” Rinckey said. “This is what makes people really troubled with the military justice system.”

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