System also on trial at Brig. Gen. Jeff Sinclair's court-martial
Two issues go on trial Tuesday at the same time, in the same courtroom, at Fort Bragg.
One is the court-martial of Brig. Gen. Jeff Sinclair, a battle-seasoned, once rising star in the Army. He is accused of sexually assaulting an officer under his command near the end of a long-running adulterous affair.
The second puts the military's criminal justice system to the test. Critics have accused the military of being soft on sexual misconduct and sexual predators in the ranks. Now, as powerful politicians, including President Obama, are exerting pressure for the military to take strong action in sexual assault cases, Sinclair's defense lawyers say the tide may be turning too far the other way.
Sinclair's court-martial — targeting, as it does, one of the Army's senior leaders — is certain to be closely watched. The trial begins this week as Congress prepares to act on a bill that would largely remove commanders from decision-making in military trials to avoid potential bias.
Sinclair's case is unusual in that he is accused of sexually assaulting a woman with whom he had an ongoing consensual relationship. The defense will use that relationship to try to undermine the woman's credibility.
Sinclair, 51, and his accuser, now a 34-year-old Army captain, met in Germany in 2008 and began their sexual relationship in summer 2009 during a deployment to Iraq, according to her testimony at an investigative hearing in fall 2012. The Observer is not naming the woman because it does not identify people alleged to be victims of sexual assault.
In 2009, Sinclair was a colonel in his late 40s, married with two young sons. The captain was a second lieutenant with prior enlisted service.
According to her testimony, their affair continued on-and-off, abroad and in the United States, until March 2012, when she reported their relationship to his superior.
At the investigative hearing in fall 2012, the woman testified that there were incidents in which Sinclair insisted over her objections on engaging in sexual activities in semipublic places where they could have been caught.
The woman said Sinclair told her he was in a loveless marriage and spoke of divorcing his wife.
She said Sinclair threatened to kill her and her family if she told anyone of their affair.
Before Sinclair made the threat, "I loved him. I know it sounds very messed up, but I still loved him. I mean, it was just — I just wanted to make him happy," she testified.
Sinclair, promoted to general, and the woman, promoted to captain, deployed to Afghanistan in September 2011. He was a deputy commanding general with the 82nd Airborne Division. She was one of his aides.
Their affair continued with encounters in his quarters and in offices, she said. But their personal relationship began to fray. She did not like that he flirted with other women, she said. They began to argue.
As the relationship deteriorated, she said, Sinclair sometimes fondled her when he encountered her or worked with her. Twice, she testified, he forced her to perform oral sex.
In March 2012, the woman discovered email messages on his computer between him and another woman, also an Army officer. These suggested another affair.
The captain became angry and vented to another soldier. That soldier told her that if she did not turn herself in, he would. Adultery is illegal under military law, and their relationship was inappropriate regardless.
She reported the affair to Sinclair's supervisor, Lt. Gen. Jim Huggins. That began the investigation that has led to the court-martial scheduled to begin this week.
Sinclair faces eight charges under military law, with 22 specific allegations of wrongdoing among them. The charges include adultery, improper relations with other women that stopped short of sex, and misusing government money to travel to see his girlfriend.
While the adultery charge is a crime in the military and can be a career ender, the most serious allegation is forcible sodomy. For that, Sinclair could get a life sentence, although military law experts have said Sinclair likely would face far less time.
But he could be dismissed from the Army. He and his family stand to lose the retirement pay and other benefits he has accrued in nearly 30 years of military service.
Five two-star generals will hear the evidence and decide Sinclair's fate. A military jury must outrank the accused, and at least two-thirds of the jury — four out of five, in this case — is required to convict him.
"It's very straightforward. It's not a complex case," said Richard Scheff, one of Sinclair's defense lawyers. The Sinclair team includes a military lawyer, several civilian lawyers, support staff and a public relations agency.
The case largely hinges on the credibility of the accuser, Scheff said.
He contends that Sinclair's girlfriend fabricated the sexual assault claims to avoid being prosecuted for adultery.
The woman testified Jan. 7 that she has been granted immunity.
"We'll be able to demonstrate that she's looking to save herself," Scheff said.
"The story that I'm going to tell the jury is that this was a three-year, consensual affair that really was no different than most consensual affairs," Scheff said. "It did not end the way (the accuser) wanted it to. It had its ups, it had its downs. But there was nothing coerced about it, and there were no forcible acts of sodomy that occurred. That is simply made up."
If the accuser had not been forced to turn herself in, she would never have reported the affair, Scheff said.
Entries from the accuser's personal journal and hundreds of text messages will demonstrate the nature of her relationship with Sinclair, Scheff said. Some show she was pursuing Sinclair, Scheff said.
The other women with whom Sinclair is accused of having wrongful relationships will not say anything bad about him, he said.
Scheff thinks Sinclair's defense is bolstered by the captain's testimony at a pretrial hearing in January followed by the lead prosecutor's sudden departure from the case in February.
The session was held to consider evidence from a cellphone that the woman turned over to prosecutors in December because it could contain evidence, such as text messages, relevant to the case.
Scheff thinks she lied under oath during that hearing.
The captain testified that on Dec. 9 she found the phone in a box, and it had been stored unused since she broke it in late 2010. She charged it overnight and powered it on the next day, Dec. 10, she said.
Forensic analysis of the phone suggests her statement was inaccurate, according to other testimony and a motion Scheff filed to ask the judge to dismiss the charges. Expert examinations of the phone's data said the phone's internal clock recorded usage in late November and early December.
Scheff thinks the captain perjured herself. He questions why the trial is moving ahead in light of the evidence that contradicts her testimony. He thinks Army commanders, whose careers depend on the good graces of other military leaders and Congress, feel pressure to move ahead with the case regardless of the facts and the advice of their lawyers.
The sudden departure in February of the lead prosecutor, Lt. Col. Will Helixon, gives this theory credence, Scheff said.
According to Scheff's motion to dismiss the case, Helixon concluded there is reasonable doubt about Sinclair's guilt. Scheff's motion says Helixon wanted to accept Sinclair's guilty plea to adultery, but Fort Bragg's commander, who makes the final call on any guilty plea, rejected it.
If Helixon truly has doubts — about Sinclair's guilt or the accuser's credibility — yet the commanders insisted that he prosecute anyway, he is in a difficult position, said lawyer Peter Yellin.
Yellin was a military prosecutor in the Marines in the 1960s and now teaches at Sandhills Community College in Moore County.
It is unethical for a prosecutor to prosecute a case if he has such doubts, Yellin said. Doing so could jeopardize his law license.
"My lawyer conscience would tell me if I couldn't proceed, I wouldn't proceed," Yellin said.
Yellin said his superiors backed him when he decided to dismiss a rape charge against a Marine in the 1960s. He said he found evidence that the alleged victim, a married woman, had sought and carried on a consensual affair with the accused Marine. She didn't report rape, Yellin said, until after the Marine broke up with her.
If Helixon left the Sinclair case because he truly had doubts about it, Yellin said, he should be commended for making the ethical choice.
But Yellin was surprised that Scheff's motion says Helixon told Scheff of his doubts.
"I would not express that doubt to a defense counsel. I would express that to a superior officer," Yellin said.
Helixon could not be reached for comment.
Some civilian lawyers who practice in military courts say the military justice system needs to be revamped. Prosecution decisions should not rest in the hands of commanders, they say.
While Scheff is trying to make the case that commanders are pressuring military lawyers to prosecute when they should not, advocates for sexual assault victims have complained that commanders have been too soft.
The military estimates that in 2012, there were 26,000 cases of unwanted sexual contact and sexual assault in the service.
Two Air Force generals sparked outrage when they overturned convictions in such cases. Commanders have that power in the military justice system. There is congressional action pending to take that power away.
One of the generals saw her pending promotion halted after her decision. The other announced his retirement in January.
"These very questions are why you need to have an impartial judicial system, not one that is so intertwined with the chain of command," said Susan Burke, a lawyer who represents sexual assault victims. Burke used to practice law with Scheff.
"This is a dysfunctional system that has been failing to incarcerate, failing to prosecute, failing to hold people accountable," Burke said.
The military justice system needs to be revamped, not just for sex crimes but to ensure all common-law crimes are handled fairly, she said.
Eugene R. Fidell, a former Coast Guard judge advocate who teaches at Yale Law School, has argued that the military justice system puts too much power in the chain of command. He suspects political pressure is influencing prosecutions.
"The series of comments, for example, from senior leaders, including the president ... have made it very difficult for commanders to think straight about what should be done," Fidell said in an interview in July. "I think it would take an extremely courageous commander today to discard an allegation without sending it to trial."
Fidell in May suggested an alternative.
"First, the antiquated power of military commanders to decide who is prosecuted for what, to pick jurors, and to review verdicts and sentences should be abandoned," he wrote in The New York Times. "Charging should be vested in senior lawyers independent of the chain of command, as is done in other democratic countries."
The proposed Military Justice Improvement Act would remove commanders from the prosecution decision-making process for many crimes punishable by one year or more in confinement, according to U.S. Sen. Kirsten Gillibrand, the bill's sponsor. Instead, trained, professional military prosecutors would make the call.
That legislation will not affect the court-martial of Sinclair. But his case could be debated for years to come as officials wrangle over how the military handles sexual assault and the basic fairness of the system.