The Associated Press
FORT BRAGG, N.C. – The sexual assault case against an Army general was thrown into jeopardy Monday when the judge said the military may have improperly pressed ahead with a trial to send a message about its determination to curb rape and other widespread misconduct.
Judge Col. James Pohl refused to dismiss the charges against Brig. Gen. Jeffrey A. Sinclair but offered the defense another chance to plea-bargain the case down with a different set of military officials.
The twist comes with the Pentagon under heavy pressure from Congress and beyond to combat what the military says is an epidemic of rape and other sex crimes. On Monday, in fact, the Senate was expected to approve legislation cracking down on misconduct.
Pohl reviewed newly disclosed emails in Sinclair’s case and said he found evidence of unlawful command influence in Fort Bragg officials’ decision to reject a plea deal before the trial began late last week.
Under the military code of justice, the decision was supposed to be decided solely on the evidence, not its broader political implications.
The defense has until Tuesday morning to decide whether to submit a plea bargain proposal again or allow the court-martial to proceed.
Sinclair, the 51-year-old 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 the affair but denied assaulting the woman.
He is believed to be the highest-ranking U.S. military officer ever court-martialed on sexual assault charges. He could get life in prison if convicted.
Richard Scheff, the general’s lead defense lawyer, would not say how he might proceed.
“This is an unprecedented situation. It’s a mess created by the government. It wasn’t created by us. We have so many options, we don’t even know what they all are,” he said.
Military prosecutors had no comment after the hearing.
Before the trial, Sinclair had offered to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges, but he was turned down.
A key issue is whether the rejection was influenced by concerns about the message it would send across the military. A letter by the lawyer for Sinclair’s accuser that raised such concerns was discussed in emails between a high-ranking Washington-based Army lawyer, the prosecutors and the commanding general overseeing the case.
Pohl said he doesn’t think the whole case was tainted, just the decision on a plea agreement.
The judge also criticized prosecutors for not giving defense lawyers the emails sooner: “The only reason we are in this conundrum is because of the government’s late notice.”
Meanwhile, the Senate appeared to be headed toward an overwhelming vote Monday in favor of big changes in the military justice system to deal with sexual assault, including scrapping the nearly century-old use of the “good soldier defense” to raise doubts that a crime has been committed.
Currently, those accused of wrongdoing can cite their good military records.
The Pentagon has estimated that as many as 26,000 military members may have been sexually assaulted in 2012, based on an anonymous survey. Many victims are unwilling to come forward despite new measures to curb abuse, the military says.
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 sexual assault charges.
In a December letter sent by her attorney, the female captain opposed the proposed plea agreement. Writing on behalf of her client, Capt. Cassie L. Fowler suggested the 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 turned over to the defense Saturday show they did discuss the assertions made in the letter.
Lt. Gen. James Anderson, as commander of Fort Bragg, made the final decision to reject the plea offer. Testifying from Afghanistan by telephone, Anderson said the only thing he weighed was the opposition of Sinclair’s accuser to the deal.
Scheff, Sinclair’s chief lawyer, told the judge Monday that the Army had been stonewalling him for months for evidence about those discussions.
“Every time we asked for these, the government has said we were going on a fishing expedition,” Scheff said. “And each time, we catch fish.”