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 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.
Hagel last month said he would support a legislative proposal to change military law so that commanders could 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 want more far-reaching legal changes.
A verdict appealed
The case in which Helms overturned the jury finding began in October 2010, when a noncommissioned officer at Vandenberg reported that she had been sexually assaulted by Capt. Matthew S. Herrera in his bedroom after a night of drinking.
Herrera’s housemate told authorities that he had a history of acting aggressively with women, according to the case file obtained by The Washington Post. Investigators found another woman, a second lieutenant, who said Herrera sexually assaulted 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 his court-martial, his attorneys argued that the sexual encounters were consensual. A jury of five Air Force officers found Herrera guilty of sexually assaulting the lieutenant and sentenced him to 60 days behind bars, a loss of pay and dismissal from the Air Force. He was found not guilty of assaulting the noncommissioned officer.
Herrera applied for clemency, arguing that he was innocent and that it would be an injustice to force him to register as a sex offender. Documents show that Helms’s legal adviser urged her to reject Herrera’s request. But in February 2012, the general granted clemency without explanation, erasing Herrera’s conviction.
Soon afterward, the noncommissioned officer who had accused Herrera of sexually assaulting her said that she had crossed paths with him at Vandenberg and, because she was junior in rank, she was required to salute him.
“He had a very smug look on his face,” Tech. Sgt. Jennifer J. Robinson said in an interview. “I was devastated and shocked.”
Herrera did not respond to interview requests placed through his attorney, Richard P. Lasting of Los Angeles.
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.
The memo was not made part of the case file or 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. She said 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 Herrera was involuntarily discharged in December.