Watch this general lose his job!!!!!!!!!
www.azcentral.com/news/arizona/articles/20130423tucson-abuse-protest-set-davis-monthan-base DEPARTMENT OF THE AIR FORCE
HEADQUARTERS THIRD AIR FORCE (USAFE)
Secretary Donley
12March 2013
I am keenly aware of the significant Congressional interest and media coverage of my 26 Feb 13
decision as a General Court Martial Convening Authority (GCMCA) to disapprove the findings and
dismiss the charges in the court-martial U.S. vs. Lt Col James H. Wilkerson Til. I am troubled by
the recent wave of continuing negative and biased dispersions being cast upon the Uniform Code of
Military Justice (UCMJ), the constitutional court-martial process, and the weighty and impartial
responsibility of a convening authority to fairly administer justice.
Accusations by some that my decision was the result of either an apparent lack of understanding of
sexual assault on my part, or that because ido not take the crime of sexual assault serious y
·are complete and utter nonsense. I unequivocally view sexual assault as a highly egregious
crime. I take every allegation of sexual assault very seriously. As a commander, I cannot
t.bil.lk
of a more destructive act to good order and discipline and to the maintenance of a cohesive and
effective fighting force. Likewise allegations that I made this decision to protect a Lieutenant
Colonel pilot or because I was a former Aviano/31 Fighter Wing Coinmander are equally preposterous.
I have many responsibilities as the Commander of Third Air Force, one of those being a GCMCA. In
this role, I review and decide all matters of military justice fairly and impartially. I review
each court-mar):ial thoroughly and independently.
The UCMJ directs that a convening authority may, inhis or her sole discretion, set aside any
finding of guilty in a court-martial. This broad and independent discretion is a direct function
of military command. There are legitimate reasons, past and present, why the UCMJ does not require
a convening authority to explain his/her actions, and in some ways, iteven appears rightly to
discourage convening authorities from explaining their decisions so as not to cause even a
perception ofUnlawful Coimnand Influence.
I have no desire to set an unfortunate and potentially damaging precedent for present and future
convening authorities. By law and inthe interests of justice, they should not believe they are
obliged to provide such explanations. No one has asked or directed me to provide this
inforrilation to you or to anyone else. Yet due to the ongoing controversy that I have recently
observed in the "court of public opinion." it is appropriate, in this case only, to provide you a
sense of what I considered in arriving at my decision.
To begin, this was the most difficult ·court case that I have ever faced as a convening authority.
The case was comprised of mostly consistent testimonies of a husband and wife incontrast to the
testimony of an alleged victim. There was no confession or admission of guilt by the accused and
no physical evidence. I even struggled with referring this case to a court-martial after reviewing
the results of the Article 32 Investigation. As you know, the evidentiary standard of probable
cause to refer charges to a court-martial is much less than the very high standard of
proof beyond a reasonable doubt to convict in a court-martial. Consequently, after my review of
the evidence within the Article 32 investigation report, and after my many discussions with my
Staff Judge Advocate (SJA), I concluded that sufficient probable cause existed to refer the case to
trial.
After the court-martial, I was somewhat surprised by the findings of guilty based upon the evidence
that I had previously reviewed and the high constitutional standard of proof beyond a reasonable
doubt in a court-martial. However,Igave deference to the court-martial jury because they had
personally observed the actual trial. I subsequently received the request for clemency by Lt Col
Wilkerson and his defense counsel along with its many compelling clemency letters. To be honest,
this was the most extensive clemency request package that either my SJA or I had ever seen. I read
all of the clemency letters (91 of them) indetail and some I read several times. Most pleaded with
me to review the entire court transcript and all the e\fidence in detail because of grave concerns
that they had with the fairness of the trial.
Letters from Lt Col and Mrs Wilkersons' family, friends, and fellow military members painted a
consistent picture of a person who adored his wife and 9-year old son, as well as a picture of a
long-serving professional Air Force officer. Some of these letters provided additional clarity to
me on matters used effectively by the prosecution inthe trial to question the character and
truthfulness of both Lt Col Wilkerson and Mrs Wilkerson. Some letters were from people who did not
personally know the Wilkersons, but wanted to convey their concerns to me about the evidence and
the outcome of the case.
Due to my previous concerns with Lt Col Wilkerson's case prior to referral and the concerns
identified indefense clemency matters, my deliberation became extensive. Accordingly,Ibegan to
personally review and consider the entire record of the trial and its accompanying papers. I
reviewed the Article 32 investigation report again. I reviewed the entire court transcript and all
the other evidence the jury reviewed (captured on compact discs or in hard copy photos). I looked
at some evidence a second and third time andIre-read particular portions of the court transcripts.
Ireviewed affidavits provided after trial by the prosecuting attorneys andIalso read a
personal letter to me from the alleged victim.Icarefully looked at everything, evidence supporting
the findings of the court-martial and evidence against. The more evidence that I considered, the
more concerned Ibecame about the court martial findings in this case.
After my extensive and full review of the entire body of evidence and my comprehensive deliberation
spanning a three-week period, Ionly then fmally concluded there was insufficient evidence to
support a finding of guilt beyond a reasonable doubt. Based upon my detailed review, could not
conclude anything else. Accordingly, could not ingood conscience let stand the finding of
guilty.
Please note, at the beginning of my thorough review, my SJA recommended approving the court
martial findings and approving the sentence of one year confinement. Inconsideration of Lt Col
Wilkerson's family and his lengthy military service, my SJA also recommended commuting the sentence
of dismissal to an additional two years of confinement However, after we engaged in numerous
subsequent conversations during my extensive deliberation of the evidence, he told me that he had
come to fully respect my concerns with the evidence inthe case and my conclusion that the evidence
did not prove Lt Col Wilkerson guilty beyond a reasonable doubt. At the end, he advised me that I
could only approve court-martial findings and a sentence that I found
correct in law and infact. Based upon his personal knowledge of how extensively and
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thoroughly I had reviewed and deliberated on this case, my SJA said he fully respected my decision
to disapprove findings inthis court case.
Below is a portion of the considerable evidence which caused me inpart, to form my reasonable doubt
as to Lt Col Wilkerson's guilt. I reviewed all the evideilce below, and other evidence,
holistically and comprehensively inreaching my conclusion:
a) The evidence indicated that the alleged victim turned down at least three distinct offers of a
ride from the Wilkerson home back to her room on base. Whenever she was offered a ride, she
seemingly had a different reason to stay at the Wilkerson home;
b) When shown clear photos of all bedrooms of the house, the alleged victim could not identify
the bed in which she slept and/or where she claimed the alleged assault occurred;
c) At different times, the alleged victim's 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;
d) In her initial statement, the alleged victim said that she "passed out" (went to sleep)
between 0045 hours and 0100 hours inthe morning, and in her court testimony she said that her. next
memory was that she was in a dream state and was. subsequently awoken at about 0300 hours by Mrs
Wilkerson turning on the light Yet the alleged victim's phone records and her testimony incourt
showed that she was texting on her phone to a friend at 0143 hours;
e) The alleged victim did not remember whether or not the man who she says assaulted her had facial
hair. Inaddition, she said his face was only 6. inches away from hers. Lt Col Wilkerson had a full
mustache and the alleged victim had already seen him throughout the recent evening;
f) The alleged victim's version of events describes a path out ofthe house from the downstairs
bedroom (the only room that she could have logically stayed in). This path was not feasible based
upon the actual layout of the house;
g) The alleged victim claimed that she woke to a bright light being turned on in the room in
which she was sleeping, and Mrs Wilkerson yelling at her to "get out of my house." The room that
she stayed inhad an energy-saving ceiling light that is dim for the first few minutes of operation.
Although the military judge did not allow the members of the jury to visit the house, the defense
counsel made a video to document what would have been the alleged victim's actions based upon her
testimony. I watched the entire video twice. It shows the very dim light and the only path to get
out of the house from the only room that she could have logically stayed in. It was not consistent
with her description of the path that she said she took out of the house;
h) Mrs Wilkerson's version of the events at her house the :night of the alleged incident was
substantially consistent from her initial OSI interview statement, to her Article 32 investigation
statement, and through her court testimony. And my detailed review of all phone records (of all the
key witnesses) validated Lt Col and Mrs Wilkerson's combined
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version of what occurred on the night in question and the next morning. Please note, I spent close
to 4 hours looking at phone record evidence alone. In particular, I detennined that the alleged
victim's cell phone records (times and durations of incoming/outgoing calls and text messages) when
aligned with the testimony and phone records of the friend of the alleged victim, all merged to a
common picture that was more consistent with
Lt Col and Mrs Wilkerson's combined version of events;
i) Regarding the next morning after the alleged incident, Mrs Wilkerson claimed she slept inuntil
0900 hours. In closing arguments, the prosecution argued she was "lying" because she had outgoing
calls, incoming calls, and texts before 0900 hours. The defense counsel countered that it was
possible that Lt Col Wilkerson was using her phone (Iam aware that occasionally wives will use
husbands' phones, husbands will use Wives' phones, kids will use adults' phones, etc.). The
prosecution argued that the defense explanation was impossible since phone records showed Lt Col
Wilkerson was on his own phoneltexting at apparently the same time. When I closely checked the
phone records to verify this prosecution argument, I determined the times ofLt Col Wilkerson's
phone-use were different from his wife's cell phone-use M- thereby making it entirely possible that
Lt Col Wilkerson was using Mrs Wilkerson's phone before 0900 hours. Likewise, the letter of
clemency from the mother of the two guest-children (who were staying overnight at the Wilkerson
house), specifically indicated that she called Mrs Wilkerson's phone that morning at approximately
0700 hours and that Lt Col Wilkerson answered it, saying his wife was still asleep. She also said
that she spoke with her children during this same phone call. Inaddition, when she subsequently
stopped by the house prior to 0800 hours to check on her children, she said Lt Col Wilkerson was
awake/up and that her children said that Mrs Wilkerson was still sle.eping;
j) The Office of Special Investigations (OSI) interviewed these two guest-children, ages 13 and
9 who were guests in the Wilkerson house the night of the alleged incident. Neither awoke or heard
any yelling during the time of the allt;ged incident. Yet, the alleged victim at one point said
that Mrs Wilkerson yelled at her to "get out of my house";
k) In addition, the mother of these two children observed her kids and the Wilkersons the very next
day following the alleged incident. She did not notice any change inthe Wilkerson's behavior or her
children's behavior, or that her children sensed any tension between the Wilkersons. Further, these
two children apparently stayed at the Wilkerson house the following night. Ifan incident occurred
as claimed by the alleged victim, it would be highly peculiar for the Wilkersons to volunteer to
take car of these two children again the following evening;
1) Additionally, witness testimony about the Wilkerson marriage before the night in question and
in the immediate days and weeks after that night, showed no perceptible tension or change in their
relationship. Had the alleged sexual assault taken place as the alleged victim claimed, it would
be reasonable to believe that their relationship would change and that close friends would perceive
this change;
m) Witness testimony from a female friend of the alleged victim (who also works at the
31st Medical Group, and who took the alleged victim to the hospital the next day) and her
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subsequent letter of clemency (in support ofLt Col Wilkerson), caused me notable additional doubt
about the alleged victim's stated version of events. The friend's comments inthis clemency letter
also indicated a potential reasonable motivation for the alleged victim to have been less than
candid in her stated version of the everits;
n) One particular witness was not allowed to testify incourt. The primary rationale was that the
applicable events of which she had knc;>wledge in regard to the character and truthfulness of the
alleged victim occurred 10 years earlier (when the alleged victim was approximately 39 years of
age). I reviewed this excluded testimony, as well as the clemency letter of this witness which
detailed court proceedings that involved the alleged victim 10 years earlier. The excluded witness
had a strong opinion that the alleged victim (now 49 years old) might lie in a court proceeding
when it would be in her personal interest to do so;
o) Significantly, I closely watched the video of the entire OS! interview of Lt Col Wilkerson (3
hours and 25 minutes). I watched it not once; but twice (and several portions I watched additional
times). The prosecution effectively used small segments of the video
in closing arguments in attempts to portray Lt Col Wilkerson as a liar, or as someone who. was
trying to cover up misconduct. However, when Itwice viewed the video in whole, and I considered
his answers in the context of the questions and paths that the OSI attempted to take him down, I
believed the entire OSI interview portrayed him as truthful;
· p) In addition. Lt Col Wilkerson waived his rights to remain silent, did not request a lawyer,
and appeared cooperative throughout. The Special Agents who conducted the interview utilized a
full gamut of investigative interviewing techniques in.attempts to garner incriminating statements
from Lt Col Wilkerson. He maintained his innocence throughout the interview, provided a written
statement, never stopped the interview, nor did he ever ask for a lawyer at anytime. As I viewed
the entire interview inwhole
(twice), it was my consistent impression that Lt Col Wilkerson answered all the questions ina
manner like an innocent person would respond iffacedwith untrue allegations against him;
q) Lt Col Wilkerson voluntarily agreed to take an OSI polygraph examination. I am fully aware of
and considered the polygraph results. As you are aware ina criminal investigation, a polygraph is
only an investigative tool to assist inthe potential focus of the investigation and/or to attempt
to elicit admissions of guilt. It is not a "lie-detector test," nor is it "pass" or "fail." Because
of the inherent unreliability of polygraphs, they are entirely inadmissible ina court-martial.
illtimately, Lt Col Wilkerson has consistently maintained his complete innocence -- throughout two
lengthy OS! interviews, through the entire court-martial, and throughout his nearly four months in
prison (following the court-martial and during the post-tria] process);
r) Finally, I do not assert in any way that the event as argued by the prosecution was out of the
realm of the possible, However when I considered all the evidence together in total,· the evidence
was not sufficient to prove this alleged version by the prosecution beyond a reasonable doubt.
Inaddition, and as simply one more point of reference, I was perplexed inrelation to this conundrum
-Lt Col Wilkerson was a ·selectee for promotion
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to full colonel, a wing inspector general, a career officer, and described as a doting father and
husband. However, according to the version of events presented by the prosecution, Lt Col
Wilkerson, in the middle of the night, decided to leave his wife sleeping in bed, walk downstairs
past the room of his only son, and also near another room with two other sleeping guest cbildren,
and then he decided to commit the egregious crime of sexually assaulting a sleeping woman who he
and his wife had only met earlier that night. Based on all the letters submitted in clemency, in
strong support of him, by people who know him, such behavior appeared highly incongruent.
Accordingly, this also contributed, in
some smau degree, to my reasonable doubt
There were some matters of evidence that could not reconcile. For example, Idid have questions
about differences in some witnesses' respective versions of events that conflicted with the
combined testimony ofLt Col and Mrs Wilkerson. Accordingly, scrutinized the allegations and
arguments that the Wilkersons were untruthful inthese instances. The majority of these
inconsistencies had plausible alternate explanations. Those that did not were not independently
conclusive, nor did all of them put together satisfy me .beyond a reasonable doubt ofLt Col
Wilkerson's guilt.
Moreover, minor inconsistencies between Lt Col Wilkerson and Mrs Wilkerson's versions of events
indicated to me that they had not colluded to manufacture a "unified story;" Infact, if their two
separate versions were too consistent,Iwould have reasonably been skeptical of them. After
Ireviewed all the evidence, it appeared to me that, at the time of their OSI interviews, the two
Wilkersons were simply trying, in good faith, to recall an evening that had occurred almost 3 and
Y2 weeks prior. After consideration of all the mattersIhave mentioned, as well as other matters
within the record of trial,Iimpartially and in good faith conchided that there was insufficient
evidence to prove beyond a reasonable doubt that Lt Col Wilkerson was guilty.
Obviously it would have been exceedingly less volatile for the Air Force and for me professionally,
to have simply approved the finding of guilty. This would have been an act of cowardice on my part
and a breach of my integrity. As have previously stated, after considering all matters inthe
entire record of trial, I hold a genuine and reasonable doubt that
Lt Col Wilkerson committed the crime of sexual assault. As a result,IwoUld have been entirely
reniiss in niy sworn military duty and responsibilitY as a OCMCA if!·did not release someone from
prison whose guilt Idid not find proven beyond a reasonable doubt Accordingly,Iknew that my court
martial action to disapprove findings and to dismiss the charges was the right, the just, and the
only thing to do.
In summary, exercised the obligation of a GCMCA exactly as required by the UCMJ, when after my
lengthy review and deliberation of the evidence,Ihad reasonable doubt as to Lt Col Wilkerson's
guilt Sir, I provide this letter for you to use or to share with others as you deem appropriate in
relation to this case or in relation to the lawful and necessary discretion of a court martial
convening authority.
Very Respectfully,
;Lieutenant General, USAF
Commander, Third Air Force
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