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Sex assault clemency surprised prosecutor

Apr. 22, 2013 - 08:08AM   |  
Col. Donald Christensen
Col. Donald Christensen ()
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More than two decades of trying and defending airmen at courts-martial taught chief prosecutor Col. Donald Christensen never to predict a verdict. He approached the case of an Aviano Air Base, Italy, lieutenant colonel accused of sexually assaulting a sleeping houseguest a year ago with his usual measured confidence.

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More than two decades of trying and defending airmen at courts-martial taught chief prosecutor Col. Donald Christensen never to predict a verdict. He approached the case of an Aviano Air Base, Italy, lieutenant colonel accused of sexually assaulting a sleeping houseguest a year ago with his usual measured confidence.

When a jury found James Wilkerson, an F-16 pilot and former Aviano inspector general, guilty Nov. 2 after a weeklong trial at the base, Christensen said he believed justice was done. Less than four months later, the commander of the 3rd Air Force upended the verdict, exercising his clemency power as the convening authority in the case.

Christensen was sitting next to a colleague when he got an email notifying him of Lt. Gen. Craig Franklin’s Feb. 26 decision.

“I turned to [him] and said, ‘We just lost military justice,’” the prosecutor recalled in a recent interview with Air Force Times. “I never thought he would do this. I never saw this coming.

“I knew this would have huge, huge repercussions.”

Christensen was right. News that a military commander had reversed a jury conviction inflamed lawmakers and victim advocates already incensed by the military’s handling of sexual assault. In letters and in hearings on Capitol Hill, Democratic and Republican lawmakers demanded an explanation. In the aftermath of the three-star’s decision, bills introduced in the House and Senate would strip commanders of the authority that has gone unquestioned for decades. Defense Secretary Chuck Hagel recently proposed scaling back that power, allowing convening authorities to overturn convictions only in cases of minor offenses and requiring them to document in writing reasons for reducing a sentence.

Wilkerson’s supporters — and there are many — have called lawmakers’ actions politically motivated. They accuse the Air Force’s chief prosecutor of being more interested in making a political statement than in the truth and of putting the fighter pilot culture, rather than Wilkerson, on trial.

Some said Christensen bullied witnesses; Wilkerson’s defense attorney wrote that Christensen was “overbearing in the courtroom when he cross-examined” the wife of the accused, “was disrespectful” and “mischaracterized facts in evidence.”

Christensen denies those accusations.

“If we were so overbearing ... they had a duty to get their butt out of the chair” and object, he said.

Christensen spoke to Air Force Times in a personal capacity and not as a representative of the service, talking for the first time at length about the Wilkerson case and Article 60 of the Uniform Code of Military Justice now under scrutiny. He said he supports Hagel’s proposed changes to the UCMJ, which would require action by Congress.

“Up until this point, I had never really given [the power to overturn a conviction] a lot of thought because I had never seen a convening authority do it,” Christensen said. “This case brought it to the forefront. It makes sense that the convening authority doesn’t need to be provided with that power.

“When you win or lose before a jury or judge, you understand it,” he said. “This was surprising and disappointing.”

Eyewitness made case unusual

The Aviano court-martial was, in many ways, not unlike the dozens of sexual assault cases Christensen has been involved in as prosecutor, defense counsel or judge over a 22-year Air Force career, he said.

The son and grandson of Air Force veterans — his father was a navigator during the Vietnam War and his grandfather served as an intelligence officer in World War II — Christensen became chief prosecutor in summer 2010. He tries only a handful of cases a year, usually the most serious crimes or those involving senior officers.

In February, he successfully prosecuted Lt. Col. James Richards, who molested a young boy; he was also the lead prosecutor in the murder case against ex-Staff Sgt. Nicholas Cron, now serving life without parole for killing a fellow airman in 2011.

Christensen was asked by the Aviano staff judge advocate to assist in the Wilkerson case because of the fighter pilot’s rank and position, and because the vice wing commander was expected to testify, he said.

“My focus over the last 20 years has been sexual assault cases,” he said. “From a prosecution point, the only thing unusual about this case is that there was an eyewitness.”

The alleged victim, an American civilian at Aviano named Kimberly Hanks, said she awoke in the Wilkersons’ guest bedroom early March 24, 2012, to find Wilkerson with his hand down her pants and his wife standing in the doorway. The couple repeatedly denied Hanks’ version of events, insisting Wilkerson never left his own bed that night.

“Other than the fact there was an [alleged] eyewitness, it’s a sexual assault case,” Christensen said. “There was a victim I wanted to make sure was appropriately treated and that we fought hard for.”

Hanks talked to a friend soon after the alleged assault, saw a nurse the following morning and did not wait long to make a report, he said.

“She was an exceptionally credible witness based on other cases I’ve done on both sides,” Christensen said. “I spent a lot of time with her before and after the trial. The emotion she showed when we would go through interviews, when she was told of the verdict, when she testified at sentencing — they were emotions I would expect from a victim.

“When victims are testifying on the stand, they don’t want the accused to see them weak. They often break down [afterward]. After she testified, she was very emotional. What she said happened remained consistent the entire time,” the prosecutor said.

In cases where there is no physical evidence or confession, the verdict often hinges on the credibility of the victim on the witness stand, Christensen said.

“I had confidence she would do well,” he said.

When the defense said during opening arguments that the alleged victim hadn’t been drunk the night of the incident — contradicting statements by the Wilkersons — “I knew we had a shot at winning,” Christensen said.

Wilkerson said he felt strange the day after the incident and told his wife he thought he may have been drugged, the prosecutor said, but he never sought medical treatment.

Christensen said he didn’t think that would sit well with jurors.

“As a pilot, you don’t just feel vertigo and then fly four missions the next week,” he said. “If you really thought you’d been drugged, you wouldn’t be strapping yourself into an airplane.”

Supporters of Wilkerson said the story Hanks recounted often changed. In a memo to Air Force Secretary Michael Donley, Franklin wrote her “description of the hours leading up to the alleged assault varied, as did her description of the state of her clothing during and immediately after the assault.”

Franklin also wrote that Hanks’ cellphone records contradicted what time she said she went to sleep, and that the clemency request “was the most extensive” he’d ever seen. Nearly 100 people wrote letters on Wilkerson’s behalf.

Christensen declined to address Franklin’s six-page memo, which listed 18 reasons the commander said led him to overturn the verdict.

But the prosecutor said many of the clemency letters came from people with secondhand knowledge of the trial and included inaccurate information.

Lawmakers and victim advocates have also seized on those documents, questioning how a letter-writing campaign by friends and family of an accused could have any place in overriding a conviction by a jury.

“The clemency letters literally attack the investigating officer, OSI, all three prosecutors, the military judge and the court members,” or jurors, Christensen said. “In other words, you have to believe this perfect storm — all these people who didn’t know each other [were out] to get [Wilkerson] and the fighter pilot community.

“If I lost a case, it wasn’t going to be the end of my career,” he said. “I’m not willing to risk my integrity, my bar license, my future, to commit crimes to convict somebody just for political purposes.”

When the jury returned a verdict of guilty and sentenced Wilkerson to a year in confinement and dismissal, Christensen said, “I believe we got justice. And that’s all we were seeking.”

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