Commanders’ Clemency Under Fire from Congress and SECDEF

Posted by Jason Van Steenwyk

Commanders Clemency ruleAmerican commanders have had clemency discretion in court martial proceedings for centuries. That means that they have broad authority to grant lenient sentences and even overturn court martial convictions if they believe it to be in the interests of justice and the efficient administration of the unit. 

This discretionary authority is granted under Article 60 of the Uniform Code of Military Justice, and dates back to the American Revolutionary War – has not been seriously disputed. Until now. 

What happens next strikes at the very heart of military justice and command discretionary authority.

What happened

Air Force Lt. Col. James Wilkerson, the former Inspector General of Aviano Air Base, Italy, was accused of sexually assaulting a woman who was a houseguest of Wilkerson and his wife at the time. 

Wilkerson’s accuser, a 49 year-old physicians assistant, testified that she had fallen asleep at the Wilkerson residence after a party and woke to Wilkerson touching her in her bed. According to her own testimony, the incident stopped when Wilkerson’s wife walked in and told her to leave.

There was no physical evidence presented. The case came down to conflicting testimony between Lt. Col. Wilkerson and his wife against the alleged victim. The Wilkersons, for their part, testified that nothing of the sort happened. They testified that Wilkerson did not get out of his bed that night. Ms. Wilkerson testified that the accuser had been walking around the house talking on her cell phone. Ms. Wilkerson testified that she told the guest to either go back to bed or to leave her house.

Meanwhile, according to reporting from Military Times, the judge at the hearing refused to allow any testimony that would have served to discredit the reliability of the accuser.

The members of the court martial convened found enough evidence to convict Lt. Col. Wilkerson, sentencing him to a year in prison.

But Lieutenant General Craig Franklin, commander of the U.S. 3rd Air Force, believed there was insufficient evidence to convict Lt. Col. Wilkerson beyond a reasonable doubt. He therefore exercised his clemency authority and overturned the conviction. Lt. Col. Wilkerson was released from prison, where he had been confined since his sentencing in November, and returned to duty. 

Naturally, this has politicians howling.

Two Democratic Representatives, Jackie Speier of California, and Bruce Braley of Iowa, have sponsored introduced the Military Judicial Reform Act of 2013 to strip commanders of their long-held clemency power. The two Democrats have been joined by at least one Republican, Patrick Meehan of Pennsylvania.

“It is time to right an egregious wrong in our military justice system,” said Rep. Speier in a statement. “The fact that one person can overturn a punishment determined by a judge or jury flies in the face of justice. We need a military justice system for the 21st century. The one we have now is primitive and is reminiscent of a time when punishments were decided by an autocrat, not by a judge or jury.”

Additionally, the newly-confirmed Secretary of Defense, Chuck Hagel, has announced that he will be conducting a review to see whether the General “correctly applied” the UCMJ and his own clemency authority.

Clemency authority was granted to commanders for a reason in the first place.

This particular case had no physical evidence. The case relied entirely on the testimony of witnesses, and there was no witness alleging a crime except for accuser. Exculpatory evidence that may have impugned the accuser’s testimony was withheld. With General Franklin’s decision to set aside Wilkerson’s conviction undergoing a withering public assault not just from Congressional representatives, but also second-guessing all the way up to the Secretary of Defense’s office, the political climate surrounding the issue of sexual assault in the military has become toxic. 

The issue is clear: The Congressional representatives and the Secretary of Defense did not like the outcome of a particular and clearly questionable case. They are therefore attacking the entire process, including a tradition of granting clemency authority to military commanders that has served America well since the founding of the Republic.

As we see in this case, the clemency authority of the commander is a valuable check and balance against the tendency of the military to engage in witch hunt UCMJ prosecutions.

Where any decision in favor of a defendant in a sexual harassment case is liable to come under fire straight from Secretary of Defense, and potentially become a career-ender for any officer, then we can trust no prosecution. This is especially true of cases where there is no physical evidence presented, where the case comes down to conflicting testimony, and where evidence that could serve to impeach the credibility of witnesses is suppressed. Where relevant evidence is suppressed, then the commanding officer has no choice but to rely on his or her personal assessment of the character and reliability of the individuals concerned – which may actually be a quite familiar matter.

Burdens of proof in military courts martial tend to be more lenient than those in civilian courts. Rules of evidence tend to favor the government more than those in civilian courts, which tilt the playing field toward prosecutors and to the detriment of defendants. With the existing standard that requires convictions and sentences to pass muster with both a court martial board and with the commander responsible, we have a valuable check and balance.

Furthermore, while the Representatives introducing the Military Justice Reform Act of 2013 object to the possibility of a commander overturning the verdict and sentencing of a court martialing board, the practice of judges overturning jury decisions is, indeed, well established in civilian courts.

In criminal cases, judges may disregard a jury’s guilty verdict and acquit or grant a new trial if they believe the evidence was insufficient to support the decision made by the jurors. Judges may also set aside a verdict if they believe the verdict was reached on a basis that violates the U.S. or respective State constitution or if the legal theory on which the jury based their decision does not conform to the law.

Other officers will surely note the Secretary’s lack of support for their judgment here. The Secretary of Defense should be backing his commander, and protecting the general from political blowback from politicians who are not familiar with the details of the case, but yet dislike this particular outcome.

And lawmakers should not be writing laws destroying a 200-year tradition based on the unwanted outcome of a single case.

That is bad reasoning, bad policy and bad law.


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