Brigadier general takes stand in Aviano sexual assault case
By NANCY MONTGOMERY | STARS AND STRIPES Published: November 1, 2012
AVIANO AIR BASE, Italy — The highest-ranking U.S. Air Force officer on Aviano Air Base took the witness stand Thursday in the sexual assault court-martial of one of his senior leaders.
Brig. Gen. Scott Zobrist, commander of 31st Fighter Wing, based at Aviano, was called unexpectedly by the defense lawyers for Lt. Col. James Wilkerson after a previous witness, the former base director of staff, told jurors he had found Wilkerson to be “unprofessional” and “exercising poor judgment at times.”
Wilkerson, an F-16 pilot and former base inspector general, has been charged with the March sexual assault of a sleeping house guest. He has pleaded not guilty.
The former staff director, Scott Cusimano, went on to say he’d complained to Zobrist about Wilkerson as well as the former Wing vice commander, Col. Dean Ostovich, who Cusimano said once “lunged across the table to grab me.”
Cusimano said Zobrist later apologized to him after the investigation into sexual assault accusations against Wilkerson began and both Ostovich and Wilkerson were “fired.”
At that, defense lawyer Frank Spinner stood up, objected and motioned for a mistrial. Spinner said his client had not been fired, yet jurors would conclude that he had been and that Zobrist “had made a determination about my client’s guilt.”
It “raises the specter of undue command influence,” Spinner said. “Once you’ve rung the bell, you can’t unring it.”
The judge, Col. Jefferson Brown, denied the motion, explaining that none of the jurors — all from Ramstein Air Base in Germany — was in Zobrist’s chain of command, that Zobrist wasn’t the convening authority in the case, and that there was no specter of undue command influence.
On taking the stand, Zobrist was asked by Spinner whether he’d “fired” Wilkerson from his position as base inspector general. Zobrist denied that, saying that he had “removed” him.
Spinner asked whether the general stood by his signature on Wilkerson’s last, stellar, performance evaluation, from February 2011 to February 2012. Zobrist testified that he did, for that time period.
Then a juror passed a question for Zobrist to the judge, as jurors are allowed to do in military trials: Would Zobrist change — as of today — the last line of the review that called Wilkerson an “Air Force superstar?”
“It’s a very difficult question,” Zobrist said. “I’ve gone to great lengths to let the investigation proceed.”
Jurors then were ushered out. All the lawyers and the judge agreed that the question should not have been asked because the answer could have provided grounds for undue command influence.
The jurors subsequently were instructed to disregard the question.
The defense moves — the mistrial motion and the unusual step of calling Zobrist to testify — came after prosecutors had put on the stand two apparently disinterested witnesses who seemed to impeach the previous testimony of a key defense witness: Wilkerson’s wife, Beth.
According to James Wilkerson’s accuser, he had begun touching her sexually while she slept, and she thought she was dreaming until she felt discomfort. A light came on in the guest bedroom, and she saw Wilkerson in bed with her — and his wife standing in the doorway, she testified.
Beth Wilkerson then threw her out, the woman testified, and she left the house after 3 a.m. without her shoes.
Beth Wilkerson denied that. She testified her husband had slept in his bed the entire night and that she had told the woman to leave in the middle of the night because she’d been noisy, walking around the house, and “erratic.”
She testified that she had offered the woman’s shoes to investigators when they came to interview her and that they had refused to take the shoes.
On Thursday, the agent who interviewed her during the investigation said that was untrue. Beth Wilkerson never offered the shoes, he testified, and in fact denied she knew their whereabouts.
In addition, Capt. Dawn Brock, who was at the Wilkerson house the night of the incident and had gotten a ride home to the base from Beth Wilkerson, rebutted the wife’s testimony.
Brock previously had testified that Beth Wilkerson asked her during the ride whether there was something wrong — whether her husband had done something to offend the subdued captain. Beth Wilkerson testified that she had asked Brock, who unbeknownst to her had been diagnosed that day with cancer, whether “Osto” — Ostovich — had done something amiss.
Ostovich had driven the accuser, Brock, and others to the Wilkerson home that night from the base club after a concert.
Beth Wilkerson testified that Brock had perhaps misheard her saying “Roscoe” — James Wilkerson’s call sign.
Brock on Thursday reaffirmed her previous testimony that Beth Wilkerson had asked about the behavior of “my husband.”
“Did she say, ‘Did Osto, or Roscoe, do anything?’ ” asked lead prosecutor Don Christensen.
“No, sir,” Brock replied.
“Did she say, ‘Did my husband do anything?’” Christensen asked.
“Yes, sir,” Brock replied.
“Are you 100 percent sure?” Christensen asked.
“Yes, sir,” Brock replied.
Both the prosecution and defense rested Thursday. Closing arguments were expected Friday.
James Wilkerson had been the wing IG from January to May, when he was removed and reassigned as special assistant to the operations group commander. Ostovich was relieved of command in June.