A female Air Force general has run afoul of Congress for granting clemency to a convicted sex offender without any public explanation, the latest case to raise fundamental questions about how the military justice system handles sex crimes.
The case is the second this year in which a three-star Air Force general has raised lawmakers' hackles by effectively pardoning an officer found guilty of sexual assault. The twist this time, however, is that the general is a woman -- a former astronaut who has served as a role model for other female officers as she climbed into the upper ranks of the Air Force.
Lt. Gen. Susan Helms, who as a crew member of the space shuttle Endeavour became the first U.S. military woman to travel in space in 1993, was poised to make another ascent in her career in March when the White House nominated her to become vice commander of the Air Force's Space Command.
Since then, however, her nomination has been placed on hold by a member of the Senate Armed Services Committee who wants to examine her previously unpublicized decision to overturn an aggravated sexual-assault conviction for a captain at Vandenberg Air Force Base in California.
Helms' action mirrors another case that has drawn angry attention from Congress and prompted legislators to propose landmark changes in military law. In that instance, victims' advocates have called for the firing of Lt. Gen. Craig Franklin, the commander of the Third Air Force in Europe, after he tossed out the sexual-assault conviction of a star fighter pilot in February.
In both cases, the generals ignored the recommendations of their legal advisers and overruled a jury's findings -- without revealing why. Neither general was a judge and neither observed the trials, but intervened to grant clemency before the convictions could be heard by an appeals court.
Drew Pusateri, a spokesman for Sen. Claire McCaskill, D-Mo., said the lawmaker is blocking Helms' nomination until she can receive more information about the general's decision.
"As the senator works to change the military justice system to better protect survivors of sexual assault and hold perpetrators accountable, she wants to ensure that cases in which commanders overturned jury verdicts . . . are given the appropriate scrutiny," Pusateri said.
The Pentagon has acknowledged that sexual assault in the military is widespread. It estimates that 19,000 offenses are committed each year, but that fewer than one in six cases are officially reported. Many victims have said they are reluctant to press charges because they lack faith in the military justice system. Of cases that are reported, only about one in 10 proceed to trial.
It is rare for commanders to grant clemency. The Air Force said it has recorded 327 convictions over the past five years for sexual assault, rape and similar crimes, but only five of those verdicts have been overturned in clemencies.
Advocacy groups, however, said any decision to overrule a jury's verdict for no apparent reason has a powerful dampening effect.
"When commanders and those in authority set convictions aside, reduce sentences or drop charges, it creates a chilling effect in the system," said Nancy Parrish, president of Protect Our Defenders, a group that represents victims of sex-crimes in the military.
Last month, Defense Secretary Chuck Hagel said he would support a legislative proposal to change military law so commanders can no longer set aside convictions for serious sex crimes. His decision marked a reversal for the Pentagon, which had long resisted the measure.
Some lawmakers, however, want more sweeping legal changes, arguing that only military prosecutors should have the power to decide whether to pursue sexual-assault charges. Currently, such decisions are made by senior officers in the suspect's chain of command.
The difficulty in winning sexual-assault convictions -- and upholding them -- is evident in the case overseen by Lt. Gen. Helms.
It began in October 2010, when a non-commissioned officer at Vandenberg reported she had been sexually assaulted by a captain, Matthew Herrera, in his bedroom after a night of drinking.
Herrera's housemate separately told authorities that he had a history of acting aggressively with women, according to an 1,800-page case file obtained by The Post. Investigators tracked down another female officer, a second lieutenant, who accused Herrera of sexually assaulting her in the back seat of a car a year earlier, although she did not report it at the time.
Herrera was charged in both cases. At the court martial, his attorneys argued that the sexual encounters were consensual. As is common in such cases, there was no physical evidence amid conflicting accounts from other witnesses who testified about what happened on the nights in question.
A jury of five Air Force officers found Herrera guilty of sexually assaulting the lieutenant, but not guilty of assaulting the non-commissioned officer. They sentenced him to 60 days behind bars, a loss of pay and dismissal from the Air Force.
Before his case could be heard on appeal by a military court, Herrera applied for clemency. He argued that he was innocent and that it would be an injustice to force him to register as a sex offender. He included letters from colleagues, his family and his girlfriend attesting to his good character.
Documents show Helms's legal adviser urged her to reject Herrera's bid. But in February 2012, the general granted clemency without explanation, erasing Herrera's conviction.
Soon afterward, the non-commissioned officer who had accused Herrera of sexually assaulting her said she crossed paths with him at Vandenberg. Because she was junior in rank, she was required to salute him.
"He had a very smug look on his face," the woman, Tech Sgt. Jennifer Robinson, said in an interview. "I was devastated and shocked."
Herrera did not respond to interview requests placed through his lawyer, Richard Lasting of Los Angeles. Lasting said it was "a shame" that Helms' nomination has been blocked, but declined further comment.
Helms declined to comment through an Air Force spokesman. Although the general did not publicly divulge her reasons for overturning the conviction, she wrote a memo for her personal files explaining her decision, said the spokesman, Lt. Col. John Dorrian.
Unusually, the memo was not made part of the official case file. Nor was it shared with prosecutors, defense lawyers, Herrera or his accusers, Dorrian said. In response to an inquiry, however, the Air Force provided a copy to The Post. It also gave a copy to McCaskill's office.
In the five-page memo, dated Feb. 24, 2012, Helms wrote that she reviewed the court-martial transcript and trial exhibits. Although she did not observe any testimony in person, she came to the opposite conclusion of the jury and found Herrera to be a more credible witness than the lieutenant. Helms wrote that it was not unreasonable for Herrera to believe that the woman had given implied consent.
"It is undoubtedly true that (the accuser's) feelings of victimization are real and justifiable," Helms wrote. "However, Capt. Herrera's conviction should not rest on (the accuser's) view of her victimization, but on the law and convincing evidence."
Instead of sexual assault, Helms found Herrera guilty of committing "an indecent act," a lesser offense. The Air Force said he was involuntarily discharged from the service in December 2012.
By Craig Whitlock
The Washington Post