General's sex-assault case thrown into jeopardy

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 January.

Under the military code of justice, the decision was supposed to be decided solely on the evidence in the case – not its broader political implications.

Pohl said the emails showed that the military officials who rejected the plea bargain had discussed a letter from the accuser's lawyer, Capt. Cassie L. Fowler. The letter warned that allowing the general to avoid trial would "send the wrong signal."

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 also accused of grabbing her genitalia against her will and of having sex with her in public, charges that saw him removed from command in southern Afghanistan in 2012. He could get life in prison if convicted. He is believed to be the highest-ranking U.S. military officer ever court-martialed on sexual assault charges.

The 34-year-old woman on Friday recounted her rocky relationship with Sinclair, and 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 late Monday that 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 the hearing.

Sinclair's defense counsel has said he offered to plead guilty to adultery, which is a crime in the military, and conduct unbecoming of an officer in exchange for the sex assault charges being dropped.

Scheff said the convening authority in the case, Lt. Gen. Joseph Anderson, rejected the offer after the accuser's special victims counsel warned Anderson in a letter in December that the guilty plea "would have an adverse effect on my client and the Army's fight against sexual assault."

Emails provided to the defense made it "crystal clear that that affected Gen. Anderson's decision," the attorney said.

The judge voiced frustration that government emails written as long as two months ago and previously sought by the defense were only coming to light in the middle of the trial. 

The judge said he does not 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."

Sinclair pleaded guilty last week to lesser offenses that carry a maximum penalty of 15 years in prison and possible dismissal from the Army. The general denies sexually assaulting the captain, 17 years his junior, and says the relationship was consensual, although inappropriate by military standards.

Now, in light of the judge's ruling, the defense could ask to withdraw Sinclair's guilty plea to those lesser charges.

Anderson, who now commands international forces in Afghanistan, testified by phone from the Swedish embassy in Kabul.

He did not recall reading the letter from the accuser's attorney, and said neither its political contents nor anyone above him in the chain of command persuaded him to reject Sinclair's plea offer.

"I asked one simple question, what does the victim want to do, and the answer was she wants to proceed to trial," Anderson testified. "That's what I based my decision on."

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.

Fowler said Monday that the courtroom maneuvering over her letter was "nothing more than an attempt to take the focus off the general's gross misconduct."

Also on Monday, the Senate overwhelmingly voted in favor of reforming the military justice system to deal with sexual assault, including scrapping the nearly century-old practice of using a "good soldier defense" to raise doubts that a crime has been committed.

The bipartisan plan would impose a half-dozen changes as Congress tries to combat the pervasive problems of rapes and sexual offenses.

The bill passed 97-0, a rare moment of strong bipartisan cooperation in a chamber that has become known in recent months for succumbing to the very opposite, political gridlock and acrimony.

The Victims Protection Act, authored by Sen. Claire McCaskil, the Missouri Democrat who is a former sex crimes prosecutor, would bolster recently codified reforms that strip commanders of their ability to overturn jury convictions, assign victims their own independent legal counsel to protect their rights, and criminalize retaliation against victims who report such crimes.

The bill, which must pass the House of Representatives before it becomes law, would "ensure that victims of sexual assault in the military will be treated with dignity and responsibility," said Sen Kelly Ayotte, a Republican co-sponsor from New Hampshire.

The reforms are part of what she called an effort to achieve "zero tolerance" and "full accountability" for commanders in their units.

The bill would gut the so-called "good soldier" defense, which allows military personnel to use their professional good standing to make their case before a military court.

"Even a successful professional can also be a sexual predator," said Sen. Carl Levin, D-Mich., who is chairman of the Senate Armed Services Committee.

McCaskill's measure is a toned-down version of more legislation put forward last year by fellow Sen. Kirsten Gillibrand., D-N.Y., that would have removed sex assault cases from the military chain of command.

Debate had toggled back and forth between the two measures, but after vociferous objection by military leaders, Gillibrand last week came up five votes short of the 60 her bill needed to overcome a bipartisan blocking tactic known as a filibuster.

The approved reforms ensure there is another level of review should a commander disagree with the recommendations of a prosecutor. They also mandate a dishonorable discharge for anyone convicted of sexual assault and eliminate the statute of limitations in rape and sexual assault cases

The "good soldier defense" could encompass a defendant's military record of reliability, dependability, professionalism and reputation as an individual who could be counted on in war and peacetime.

Under the McCaskil bill, the "good soldier defense" could still be used in the sentencing phase. 

Next comes consideration by the House, where Michael Steel, a spokesman for Speaker John Boehner, R-Ohio, said Monday, "The entire House is proud of the bipartisan reforms on this important issue included in last year's defense authorization bill, and we will review this legislation to determine the best way to consider additional reforms in the House."

Wire services