Judge in general's court-martial won't allow sexually explicit material to be used as evidence
By PAUL WOOLVERTON | The Fayetteville Observer, N.C. | Published: March 6, 2014
The jury in the court-martial of Brig. Gen. Jeff Sinclair may see some of the 9,100 pornographic materials investigators found on his computer equipment, but the materials may not be used to prove he was guilty of sexual assault or other sexual misconduct with an Army captain under his command.
The judge in the case, Col. James Pohl, set the limitation Wednesday afternoon at Fort Bragg after Sinclair's lawyers tried to get him to exclude presentation of the pictures and videos at the trial. Sinclair's charges include possession of pornography in Afghanistan in violation of an order prohibiting soldiers from having porn there. Defense lawyer Ellen Brotman said Sinclair was willing to stipulate to the presence of the pornography on the computer equipment if the images and videos were not shown to the jury.
The images and videos could upset the jurors and make them more inclined to convict Sinclair of the more serious sexual assault and sexual misconduct charges, Brotman said.
Sinclair is a former deputy commander for the 82nd Airborne Division. His court-martial is scheduled to have opening statements at 9 a.m. Thursday at the Fort Bragg courthouse. The most serious charge, forcible oral sodomy of a captain under his command, carries a potential life sentence.
Sinclair's eight charges, with 22 specifications of wrongdoing, also include adultery with the captain, other sexual misconduct involving her, inappropriate (though non-physical) relationships with other women, and other crimes.
Lt. Col. Rob Stelle, the lead prosecutor, argued that the pornography should be used as evidence to demonstrate that Sinclair intended and planned to commit forcible oral sodomy of the captain. They also show Sinclair planned to have sexual activity with her in public settings where they might have been seen, Stelle said.
Some of the pornography depicts forcible oral sex and aggressive oral sex, Stelle said, and some depicts sexual activity outdoors and in an office.
Brotman argued Stelle shouldn't be able to make a connection between the content of the pornography and the alleged crimes.
"Lots of people watch pornography. Does that mean they are going to commit an offense?" she said. She predicted the presentation of the images, particularly during opening statements, would create the risk of a mistrial.
Pohl decided the pornography could provide some indication of motive, intent or preparation to commit the more serious alleged crimes, but this was outweighed by how much the content could prejudice the jury on those assault and misconduct charges. He ruled that Stelle can't use it to prove those alleged crimes took place.
Prosecutors may still show the material to the jury in an effort to prove Sinclair possessed pornography in Afghanistan. However it may not show any of it during opening statements, Pohl said.
The prosecutors had prepared 125 sample images and videos from the 8,500 images and 600 videos found on the computer gear. The judge viewed the 125 on Wednesday. Prosecutors wanted to show seven of these during Thursday's opening statements, they said.
Sinclair, who is married, has acknowledged a nearly three-year consensual adulterous affair with the captain. He denies the allegations that he assaulted her. Adultery is a crime in the military; the captain has been granted immunity from prosecution in this case.
Earlier Wednesday, the trial's five jurors were quizzed to determine whether they had been tainted for jury service following their selection for this court-martial in July and August.
During questioning, some said they had heard information about the case in the news or in conversations and they quickly removed themselves from the situation. Some also had awareness of other sexual misconduct cases. One, for example, said his executive officer, a captain, was accused of having an extramarital affair with a sergeant.
No jurors were struck.
The jurors are:
- Maj. Gen. Donald Christopher Leins of the Joint Staff at the Pentagon.
- Maj. Gen. M. Ted Wong, commanding general of the Northern Regional Medical Command.
- Maj. Gen. Dean G. Sienko, commanding general of Army Public Health Command.
- Maj. Gen. Paul E. Crandall, deputy chief of staff for United States Forces Korea.
- Maj. Gen. John F. Wharton, commanding general of the U.S. Army Sustainment Command.