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Judge's decision is latest twist in Army sex case

Mar. 11, 2014 - 06:00AM   |  
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FORT BRAGG, N.C. — The trial of an Army general accused of sexual assault moved into uncharted legal territory Tuesday when the judge dismissed the jury to allow the defense time to hammer out a new plea deal with the military.

While the highly unusual decision gives Brig. Gen. Jeffrey A. Sinclair a second chance to negotiate the dismissal of the most serious charges, he appears certain to face an inglorious end to a nearly 30-year career spanning service in three wars. His lawyers said it could take weeks to finalize an agreement.

Experts in military law said Judge Col. James Pohl is seeking a just and innovative solution for a courtroom situation that doesn’t fit prior case law.

“No one has ever seen anything like this before, but it seems like the right thing to do,” said retired Maj. Gen. Walt Huffman, a Texas Tech University law professor who previously served as the Army’s top lawyer. “This case was already unusual in so many respects.”

Judge Pohl reviewed newly disclosed emails Monday and said he found the appearance of “unlawful command influence” in Fort Bragg officials’ rejection of a plea bargain with the general in January. He declined to dismiss the charges outright, but allowed Sinclair’s lawyers to negotiate with Army officials not previously involved with the case.

If they fail to reach a plea deal, the trial would resume. But with the jury sent packing, it’s unlikely that could happen quickly.

The jury of five two-star generals was seated last week, traveling from as far away as Korea and Alaska. They appeared confused as Pohl sent them home, saying they may or may not be asked to return.

“Sometimes there are twists and turns you can’t anticipate,” Pohl told the jurors.

Sinclair, 51 and the former deputy commander of the 82nd Airborne Division, is accused of twice forcing a female captain to perform oral sex on him in Afghanistan in 2011 during a three-year extramarital affair. He has admitted to adultery, which is a crime in the military, but denied assaulting the woman.

Believed to be the highest-ranking U.S. officer ever court-martialed on sexual assault charges, Sinclair appeared upbeat as he left court Tuesday, joking with the military police guarding the door.

Lead defense attorney Richard Scheff said his client would not agree to plead guilty to any charges involving sexual assault or any charges that would require him to register as a sex offender.

“He did not sexually assault anybody,” Scheff said. “He did not threaten anybody. He’s not maltreated anybody. We’d love to resolve the case. But if we can’t, we look forward to our day in court and his vindication.”

Lt. Col. Robert Stelle, the lead prosecutor, declined to comment.

Last week, Sinclair pleaded guilty to three lesser charges involving adultery with the captain and improper relationships with two other female Army officers. Those charges could bring 15 years in prison. A trial then began on the remaining charges, with a potential sentence of life in prison.

Now, with Tuesday’s decision, the defense may ask Pohl to withdraw Sinclair’s guilty plea in favor of whatever new deal can be reached. Sinclair also faces charges he defrauded the Army of more than $4,000 in travel expenses to visit his mistress.

The latest upheaval in the case comes as the Pentagon is under heavy pressure from Congress to fight sex crimes in the military. On Monday, the U.S. Senate approved legislation cracking down on misconduct.

Eugene R. Fidell, a former U.S. Coast Guard lawyer who now teaches at Yale Law School, said revelations about how Sinclair’s previous plea offer was handled will help lawmakers who want to remove authority for prosecutorial decisions from the military brass.

“This whole episode shows there is a problem in a system that needs to be modernized to get the commander out of the driver’s seat,” Fidell said.

In December, Sinclair offered to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges, but he was ultimately turned down by the general in charge of Fort Bragg.

Under the military code of justice, the decision on whether to accept Sinclair’s plea offer was supposed to be based solely on the evidence.

But Pohl said the newly disclosed emails showed that lawyers and the general overseeing the case had discussed a letter from the accuser’s lawyer, which warned that allowing the general to avoid trial would “send the wrong signal.”

In the letter, attorney Capt. Cassie L. Fowler suggested that the proposal plea deal would “have an adverse effect on my client and the Army’s fight against sexual assault.”

“Acceptance of this plea would send the wrong signal to those senior commanders who would prey on their subordinates by using their rank and position, thereby ensuring there will be other victims like my client in the future,” Fowler wrote.

Though prosecutors deny any consideration was given to Fowler’s comments about the potential fallout, the emails cited by the defense show they did discuss her assertions. One top military lawyer at Fort Bragg quoted her letter and said he found Fowler “very preachy.”

Testimony shows lawyers involved in the case wanted to cut a deal with Sinclair to avoid a trial, especially after evidence arose that his primary accuser lied during testimony.

But they were overruled by the base commander, Lt. Gen. James Anderson.

Testifying from Afghanistan by telephone, Anderson said Monday that he didn’t thoroughly read Fowler’s letter. The only thing he weighed in rejecting the deal was that the accuser wanted her day in court, he said.

However, a Dec. 20 email he sent to a military lawyer stated: “I have read the letter and made my decision.”

Fidell, the former military prosecutor, said he found Anderson’s testimony more troubling than the emails or the letter from the accuser’s attorney.

“Really, the letter from the victim’s advocate only stated the obvious — that this is a high-stakes case,” Fidell said. “More disturbing was the testimony that the commanding general based his decision on what the accuser wanted, rather than the evidence in the case and the advice of his lawyers.”

Huffman said the Army’s case against Sinclair, if it were to still go to trial, would clearly be weakened by issues surrounding the accuser’s credibility. He predicted prosecutors will cut a deal resulting in Sinclair’s dismissal from the Army at reduced rank, costing him dearly in lost retirement benefits.

“He deserved to be court-martialed and he deserves punishment,” the former general said. “But did he deserve to court-martialed for sexual assault? That is a different question.”

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