Sinclair defense cites new emails in bid to get charges dropped
By David Zucchino | Los Angeles Times | Published: March 10, 2014
DURHAM, N.C. — Citing newly received Army emails, lawyers for Brig. Gen. Jeffrey Sinclair on Sunday night renewed their claims of Army command interference in the general's sexual assault prosecution and asked the military judge to reconsider his refusal to drop the charges.
In a motion submitted the night before Sinclair's accuser, an Army captain, is scheduled to be cross-examined at Fort Bragg, N.C., defense lawyers referred to an email by a senior Army legal officer expressing concerns that the accuser lied on the stand at a preliminary hearing in January.
The motion was hurriedly filed in response to 14 pages of emails provided by military prosecutors over the weekend, a spokesman for the defense team said late Sunday night.
The perception of fairness is in considerable doubt such that these proceedings have been infected by both apparent and actual unlawful command influence, the defense wrote in its motion. The defense had asked the judge to drop all charges last week but he refused.
The latest emails appear to show that there was concern among Army officials about the accuser's truthfulness in addition to similar concerns cited by the lead prosecutor before he quit the case last month after failing to persuade the Army to drop the most serious charges against Sinclair.
The accuser testified Jan. 7 about a cellphone she said she found while unpacking boxes on Dec. 9, long after evidence in the case was supposed to be turned over. Forensic analysis indicated that the woman lied about when she found the phone and what she did with it. The phone contains messages to and from Sinclair.
It is possible that she was not truthful, Col. Michael Lacey, a senior military lawyer at Fort Bragg, wrote Jan. 8 to Lt. Gen. Joseph Anderson, who was then Fort Bragg and XVIII Airborne Corps commander. The accuser had testified the day before.
Lacey wrote of the accuser: The forensic analysis of the phone indicates she accessed the phone before 9 December, which brings her credibility into question.
An email from another high-ranking Fort Bragg legal officer, written after the accuser disclosed finding the phone, appears to suggest that the Army accept Sinclair's offer to plead guilty to lesser charges.
For my part its 90-percent there, Lt. Col. James Bagwell, whose title is Chief, Military Justice at Fort Bragg, wrote of the plea offer in a Dec. 16 email to Brig. Gen. Paul Wilson, then a colonel, a senior Army legal officer at the Pentagon.
Bagwell wrote that a lot was happening in the case, virtually none of it good for Govt. He asked Wilson for his thoughts on the plea offer. The emails turned over by the prosecution do not include a return email from Wilson or indicate whether he responded.
In Sunday's motion, lead defense lawyer Richard Scheff says the emails are evidence of "unlawful command influence" by Army officials. The defense has argued that the Army trumped up charges against Sinclair in response to political pressure to show that it is getting tough on sexual assault in the ranks.
The motion cites an email from an Army legal adviser to Lt. Gen. Anderson. The email refers to a letter the accuser's special victim's advocate wrote to Anderson. The advocate wrote that accepting Sinclair's plea "would have an adverse affect on my client and the Army's fight against sexual assault."
The legal adviser, Lt. Col. Jerrett Dunlap, wrote Dec. 18 that he had just met with Lt. Gen. Anderson, who agreed that the Army could not accept the plea offer. "The letter made (it) an easy decision," Dunlap wrote.
The judge presiding over the court martial, Col. James Pohl, last week dismissed the earlier defense motion alleging unlawful command influence, but noted that the defense had showed "some evidence" of such influence. Pohl said the letter from the victim's advocate was inappropriate.
Sinclair, 51, the former deputy commander of U.S. troops in southern Afghanistan, pleaded guilty Thursday to adultery, inappropriate relationships with two other female officers; attempting an inappropriate relationship with a third; impeding an investigation, and viewing pornography while on duty. That was a tactical move by the defense to avoid salacious accounts of philandering and pornography, and to focus instead on attacking the accuser's credibility.
The accuser testified Friday that Sinclair twice forced her to perform oral sex at a military base in Afghanistan. She said he threatened to kill her and her family if she revealed the affair, groped her against her will, and grabbed her by the neck during an argument in a hotel room in Arizona.
She is scheduled for cross-examination Monday.