A military judge presiding over a closely watched Air Force rape case said he’ll dismiss the case unless he’s able to review top Air Force officials’ email correspondence in which they discussed the matter.
In the court-martial of Airman 1st Class Brandon T. Wright, Lt. Col. Joshua Kastenberg ruled for the defense and ordered release of any pertinent emails from the Air Force’s top lawyer, the Judge Advocate General, and the Air Force Secretary, among others. The judge’s ruling came after the defense requested disclosure to determine if the case might have been prejudiced by unlawful command influence.
Kastenberg said he would dismiss the case — which has dragged on for more than two years — if officials did not turn over the emails for the judge’s review, according to Air Force officials who declined to be identified because they weren’t authorised to publicly discuss the case.
The Air Force is appealing the ruling to the Air Force Court of Criminal Appeals.
The Air Force argues that the emails are privileged attorney-client communications exempt from disclosure and that any email communication among them is irrelevant to questions of unlawful command influence. They say what is relevant is that the convening authority who sent the case to court-martial acted independently, with no pressure from higher-ups in the chain of command.
The case began in July 2012, with the allegation made at Aviano Air Base, Italy, by an Air Force sergeant who said that Wright raped her in her home while the two were watching movies. Wright has maintained that any sexual contact was consensual.
After an Article 32 investigatory hearing at Aviano to determine whether there was sufficient evidence for a court-martial, the hearing officer recommended that charges against Wright be dropped. Lt. Gen. Craig Franklin, the court-martial convening authority, concurred and dismissed the case.
But that was not the end of it.
Top Air Force officials became involved after learning that the sergeant’s special victims counsel had, in a memo to Franklin, raised questions about the Article 32 hearing officer’s impartiality and requested a meeting. They were troubled that Franklin had declined to meet with the alleged victim, as convening authorities are supposed to do, to discuss any concerns.
The officials then took the highly unusual step of transferring the case for another investigation by a different command, the Air Force District of Washington, at Joint Base Andrews, Md., where the alleged victim had been reassigned.
In January, a second Article 32 hearing took place, and that investigative officer recommended that the case proceed to court-martial. The new convening authority, Maj. Gen. Sharon K. G. Dunbar, concurred, and ordered the case to trial.
Wright’s defense has consistently argued that charges against Wright should not have been brought a second time.
“We object to this hearing generally,” Maj. Dominic Angiollo said at the January Article 32 hearing. “We’ve already been through an Article 32. We thought that was conducted properly.”
Angiollo could not be immediately reached for comment on the latest development in the case.
Ryan Guilds, a Washington, D.C.-based lawyer who recently joined the Air Force special victims counsel in representing the sergeant, said that the sergeant was “resilient but extremely frustrated” with the process.
“She has obviously gone through a tremendous amount, with two Article 32s and all that that entails,” he said. “She wants her day in court.”
If the appellate court does not overturn Kastenberg’s ruling, it’s unclear whether the Air Force would reconsider the decision not to release the emails.
“I don’t know what will happen if push comes to shove,” one official said.
No decision from the appellate court is expected for at least three months.