A military judge on Monday declined to dismiss sexual assault charges
against General Sinclair after reviewing what he said was evidence
that political considerations influenced the military’s handling of
By Michael Biesecker
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 with a set of military officials not previously
involved with the matter.
The twist comes with the Pentagon under heavy pressure from Congress
and beyond to combat rape and other sex crimes in the military. Late
Monday, the Senate unanimously approved a bill making big changes in
the military justice system to deal with sexual assault.
The judge reviewed newly disclosed emails in Sinclair’s case and said
he found the appearance of “unlawful command influence” in Fort Bragg
officials’ decision to reject a plea bargain with the general in
Under the military code of justice, the decision was supposed to be
decided solely on the evidence, not its broader political
Pohl said the emails showed that the military officials who rejected
the plea bargain had discussed a letter from the accuser’s lawyer. The
letter warned that allowing the general to avoid trial would “send the
Sinclair’s attorneys have until Tuesday morning to decide whether to
submit a plea-bargain proposal again or proceed with the
court-martial, which began last week.
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
The defense has portrayed the woman as a liar who concocted the
allegations after she saw emails between Sinclair and another woman.
Richard Scheff, the general’s lead defense lawyer, said the defense
has not yet decided what to do.
However, he said the new developments vindicate what the defense has
been claiming for months — that the Army pressed ahead with a weak
case for fear of the political blowback that would result from
dropping charges against such a high-profile defendant.
“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,” Scheff said.
Lt. Col. Robert Stelle, the lead prosecutor, declined to comment after
In December, 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. His plea offer was discussed in
emails among a high-ranking Washington-based Army lawyer, the
prosecutors and the commanding general overseeing the case.
The judge said he doesn’t believe the whole case was tainted, just the
decision on a plea agreement. He 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 approved 97-0 a military-justice bill that would
scrap 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 said.
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.
Now, in light of the judge’s ruling, the defense could ask to withdraw
Sinclair’s guilty plea to those lesser charges.
In December, Sinclair’s accuser came out against a plea bargain on the
more serious sexual assault charges in a letter sent by her attorney,
Capt. Cassie L. Fowler. Fowler suggested that the proposed deal would
“have an adverse effect on my client and the Army’s fight against
“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 her assertions. One top
military lawyer at Fort Bragg quoted her letter and said he found
Fowler “very preachy.”
It was Lt. Gen. James Anderson, as commander of Fort Bragg, who made
the final decision on whether to accept Sinclair’s plea offer.
Testifying from Afghanistan by telephone, Anderson said 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
But Anderson’s testimony appeared to be contradicted by a Dec. 20
email he sent to a military lawyer. “I have read the letter and made
my decision,” Anderson wrote.
Scheff, Sinclair’s chief lawyer, told the judge Monday that the Army
had been stonewalling him for months for evidence about those
“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.”
Fowler said Monday that the courtroom maneuvering over her letter was
“nothing more than an attempt to take the focus off the general’s