Army general can enter new plea

Rejection of deal in sex-assault case improper, judge rules

FORT BRAGG, N.C. - The military judge overseeing the court-martial of Brig. Gen. Jeffrey A. Sinclair, accused of sexually assaulting a 34-year-old captain formerly under his command, ruled Monday that Army officials may have been improperly influenced when they rejected Sinclair’s offer to plead guilty to some charges before the trial.

The judge, Col. James L. Pohl, said from the bench that he was “not convinced beyond a reasonable doubt” that the prosecutors and their commanders at Fort Bragg, N.C., where Sinclair is based and is being tried, acted completely independent of external politics and possible pressure from senior Pentagon officials when they decided to turn down Sinclair’s offer, made late last year.

Pohl said he would give Sinclair the opportunity until today to file a new plea offer. If the general makes a new offer, the judge said a senior Army officer not currently involved with the case would be named to decide whether to accept it.

But if Sinclair decides not to file a new plea, the trial will proceed today, the judge said.

Defense lawyers had asked him to dismiss the most serious charges, including forcible sodomy and maltreatment. But Pohl said he would not do that, saying that would “not be appropriate.”

In ruling that “unlawful command influence” had occurred, Pohl found in particular that a letter by Capt. Cassie Fowler, a lawyer representing the accuser, may have affected the thinking of Lt. Gen. Joseph Anderson, the commanding general of Fort Bragg’s XVIII Airborne Corps and the ultimate authority over the court-martial. That letter, sent in December, said the accuser was opposed to a plea deal, and it invoked the potential political consequences of an agreement on the Army’s efforts to combat sexual assault.

“The letter from the SVC raised the appearance of unlawful command influence,” Pohl said in announcing his decision on Monday, using an Army abbreviation for special victims’ counsel. The judge said that he believed evidence had proved that Anderson had read the letter.

The defense had produced Fowler’s letter in court last week in arguing for unlawful command influence. At the time, Pohl expressed concerns about the letter, but he said there was not enough evidence of improper influence to dismiss charges.

But Sinclair’s lawyers offered a new motion Sunday of unlawful command influence based on emails it obtained from the military over the weekend that document what they said was evidence of improper efforts to influence the prosecution by senior Army officials in Washington.

The emails illustrate fears among a number of senior officers at Fort Bragg that the captain might have testified untruthfully at a hearing in January.

Former lead Prosecutor Lt. Col. William Helixon quit the case last month after it was publicly disclosed that he had failed to persuade his superiors to dismiss the most serious charges against Sinclair. Army officials have testified that Helixon was under extraordinary stress from health and personal issues when he expressed those views and was even acting irrationally and suicidal at times. They also assert the prosecution is convinced that the accuser’s major accusation of sexual assault is true.

But the messages that defense lawyers obtained over the weekend indicate that the most senior Army lawyer at Fort Bragg had also raised immediate concerns with his commanding officer about the accuser’s testimony in January, which was about her finding an old iPhone that contained messages between herself and Sinclair.

“It is possible that she was not truthful,” Col. Michael Lacey, the senior military lawyer at Fort Bragg’s XVIII Airborne Corps, wrote to Anderson in an email early on the morning after the accuser’s Jan. 7 testimony.

A separate email disclosed over the weekend shows that another Army lawyer at Fort Bragg, who was advising the top commander at the base about the court-martial, solicited input about the case in December from one of the Army’s top lawyers at the Pentagon.

The email was sent Dec. 16 by Lt. Col. James Bagwell, chief of military justice at Fort Bragg - who, defense lawyers said, was also serving as the base’s acting staff judge advocate at the time - to Brig. Gen. Paul Wilson, then a colonel, who is a senior officer at the Judge Advocate General’s Corps at Army headquarters at the Pentagon.

The email detailed Sinclair’s offer to plead guilty to charges including adultery and conduct unbecoming an officer and to retire at a reduced rank if the military agreed to drop the most serious charges of sexual assault. It was sent days after the general’s accuser revealed to prosecutors that she had found the old iPhone.

In the email, Bagwell appeared to endorse the concept of a plea bargain with Sinclair.

“For my part, it’s 90 percent there,” he wrote, referring to the plea offer.

On Monday, Bagwell testified before Pohl, saying he did think that a plea agreement with Sinclair had been within reach. He also testified that he considered the general’s offer to plea “reasonable.”

But Bagwell testified that after Anderson reviewed the letter from Fowler opposing a plea deal, the offer “was off the table.”

Bagwell also testified that although Wilson never replied by email, they spoke by phone and shared their “personal opinions.” Bagwell testified that he reached out to Wilson because, “I was interested in his opinion - nothing more than that.”

In a telephone call from Afghanistan on Monday, Anderson testified that the only factor in his decision to reject Sinclair’s plea offer was the December letter from the accuser’s lawyer, not orders or pressure from Washington.

Sinclair last week pleaded guilty to a set of lesser charges, including possession of pornography and adultery, in hopes of focusing the case on the credibility of the captain, whose story has come into question after her testimony during a January pretrial hearing conflicted with forensic evidence.

Those charges carry a maximum sentence of 15 years.

But he is still facing charges that carry a possible life sentence, including forcible sodomy, wrongful sexual contact, indecent acts, maltreatment and misuse of government charge cards.

The defense has asked Pohl to dismiss many of the remaining charges, including forcible sodomy. Lawyers also raised the prospect of a mistrial, but they have not formally sought such a declaration.

During five hours of testimony Friday, the captain tearfully described the two instances in which she said Sinclair forced her to perform oral sex on him in Afghanistan.

Defense lawyers contend that the captain, whose three year affair with Sinclair was revealed to military officials nearly two years ago, concocted claims of sexual assault to avoid criminal prosecution for adultery, which can be a crime in the military. They have pledged to pursue an aggressive cross-examination.

Front Section, Pages 4 on 03/11/2014

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