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Senators slam overturned sex assault conviction

Mar. 5, 2013 - 04:32PM   |   Last Updated: Mar. 5, 2013 - 04:32PM  |  
From left: Sen. Barbara Boxer, D-Calif., Lt. Gen. Craig Franklin, Lt. Col. James Wilkerson and Sen. Jeanne Shaheen, D-N.H.
From left: Sen. Barbara Boxer, D-Calif., Lt. Gen. Craig Franklin, Lt. Col. James Wilkerson and Sen. Jeanne Shaheen, D-N.H. ()
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Two senators have called on Defense Secretary Chuck Hagel to look into last week's decision by the Third Air Forces commander to overturn the sexual assault conviction of a former Aviano Air Base, Italy, inspector general.

A jury in November sentenced Lt. Col. James Wilkerson to a year in a military prison and dismissal from the Air Force. Lt. Gen. Craig Franklin set aside the conviction Feb. 26, freeing Wilkerson from a South Carolina brig and reinstating him in the military.

Franklin "declined to approve the conviction because he did not think that there was enough evidence to say that he was guilty," Lt. Col. Paul Baldwin, a U.S. Air Forces in Europe spokesman, said.

Some have heralded the commander's decision as an act of justice in a military system that has become over-zealous in its pursuit of sexual assault convictions. Others have said the reversal does untold harm to future victims of military sex crimes who are already hesitant to come forward.

Sens. Barbara Boxer, D-Calif., and Jeanne Shaheen, D-N.H., sent a letter to Hagel on Monday asking that he "immediately review" Franklin's decision.

"This is simply unacceptable and raises serious concerns about the military justice system as a whole," the senators wrote. "… This is a travesty of justice. At a time when the military has unequivocally stated that there is zero tolerance for sexual assault, this is not the message it should be sending to our service men and women, and to our nation."

The senators asked Hagel for "detailed information regarding the basis for [Gen.] Franklin's decision" and whether he has the authority to overturn it.

He doesn't, according to Eugene R. Fidell, who teaches military law at Yale University. Clemency "is a done deal. This is final," he said.

Commanders have what Fidell calls "wild-card authority" to reduce or set aside sentences or overturn convictions. "This is entirely unbridled discretion. In a way, it's another aspect of the command-centric nature of American military justice as currently designed," he said.

Boxer and Shaheen also asked Hagel to "take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions."

That would require congressional action, however.

"At times, convening authorities have explained why they've done things like this," Fidell said. "But they have no obligation to."

Baldwin, the U.S. Air Forces Europe spokesman, said last week he could not elaborate on Franklin's decision.

Sen. Claire McCaskill, D-Mo., also spoke out about the reversal during a Senate hearing today. She called for a review of Franklin's decision and also called for his possible ouster, according to a news release from her office. McCaskill said she is considering legislation that would remove clemency authority from commanders.

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