Brig. Gen. Jeffrey A. Sinclair (Army)
FORT BRAGG, N.C. — A judge in the sexual assault court-martial of Brig Gen. Jeffrey Sinclair seated four of a required five jurors Wednesday over the objections of defense attorneys who argued they could be biased by their intertwined command relationships with each other and key witnesses.
The judge, Col. James Pohl, dismissed eight of 12 prospective jurors from the panel after attorneys for Sinclair, who is charged with forcible sodomy and other alleged misconduct, sought to exclude all 12 of them.
Defense attorney Richard Scheff had argued the prospective jurors — all two- or three-star generals — should be disqualified because of their exposure to Army sexual assault training and their relationships to key witnesses, particularly Lt. Gen. James Huggins, the Army’s deputy chief of staff for operations, G-3/5/7.
“It’s one thing if you don’t know the guy, but every single one of those jurors, not only do they know [Huggins], they professionally respected him, believed in his credibility and [said] that would carry into the court room,” Scheff told reporters afterward. “Plus, he’s the G-3 of the Army, which is a very significant position.”
When Huggins was commander of the 82nd Airborne in Afghanistan, he initiated the investigation of Sinclair, who was then the 82nd deputy commander for support.
Earlier, Pohl asked prosecutor Lt. Col. Will Helixon why the jury pool could not have been comprised of flag officers from other services to avoid a pool of jurors with connections to witnesses and each other.
Pohl acknowledged that the generals had each said those connections would not prevent them from acting independently, but he noted the standard — which was whether a reasonable observer would see substantial bias.
“If you look at the case law, they may give you the right answer, but you have to look at the standard,” Pohl said. “I understand the do-loop this puts you in, but the standard is the same.”
Helixon responded that the Army officers in question are asked to set aside personal and professional relationship on grave matters on the battlefield and concerning national security.
“They make life or death decisions, they [make] strategic decisions, they are the best and brightest of the U.S. Army who we rely on to keep is safe,” Helixon said. “Are they going to be able to put aside whether they worked with a witness in this case? The answer is yes.”
Jury selection is set to continue Thursday as the attorneys interview eight new prospective jurors from a pool of 12 alternates.
Sinclair is accused of forcing a captain with whom he had a three-year consensual affair to twice perform oral sex while she and Sinclair were deployed to Afghanistan in 2012. He is also charged with having inappropriate relationships, disobeying orders and other misconduct.
Sinclair, who has pleaded not guilty to all the charges, faces a maximum sentence of life in prison.
Pohl’s decision capped two days in which defense attorneys and prosecutors questioned potential jurors about their connections to witnesses, and whether they were influenced by statements by of senior leaders, Congress and the president against military sexual assault.
By law, all the court-martial jurors must be senior in rank to the defendant, so the initial jury pool was made up of lieutenant and major generals. In the Army, only 230 general officers would have qualified, Helixon said in court, arguing that the smaller pool should require a looser standard to seat them.
Scheff successfully made issue of some of the potential jurors connections to victims of sexual assault, arguing in the case of one general who was excused that Sinclair’s case was too similar to the general said his wife had been sexually harassed years earlier.
Scheff unsuccessfully attempted to make issue of the potential jurors’ exposure to sexual harassment and assault training — particularly in cases when the potential jurors affirmed there was a duty to believe alleged sexual assault victims in the investigative process, or some variation on that idea.
Helixon replied, “there would not be a general officer that could be seated,” and noted that each of the potential jurors had said they would be able to act independently.
The jurors named Wednesday were Maj. Gen. Anthony Cucolo, Maj. Gen. Kenneth Dowd, Maj. Gen. William Hix, and Maj. Gen. Bradley May.
As Pohl named the four general officers to the jury, he instructed them not to discuss the case with anyone, to delegate all matters related to sexual assault and harassment prevention and — if asked — refuse to testify before Congress on such matters.
Although eight potential jurors were in contention, the prosecution did not the defense’s request to exclude four potential jurors.