Judge weighs improper influence in Army sex case

MICHAEL BIESECKER Associated Press Published:

FORT BRAGG, N.C. (AP) -- A military judge weighed whether to throw out sexual assault charges against an Army general on Monday because of what he said was evidence that political considerations influenced the military's handling of the case.

Military judge Col. James Pohl found that there was the appearance of unlawful command influence in the case after reviewing emails between a high-ranking Pentagon lawyer, the prosecutors and the commanding general overseeing the case. Pohl then began discussing with lawyers whether to drop sexual assault charges against Brig. Gen. Jeffrey A. Sinclair or proceed with the case.

A key issue is whether a general's decision to reject a potential plea deal was influenced by concerns about the message it would send across a military grappling with sexual assault. Under military code of justice, Fort Bragg's commanding general was supposed to decide on the plea agreement solely based on evidence in the case -- and not its broader political implications.

The latest twist in the case came after lawyers for Sinclair presented the judge with emails showing a discussion among Fort Bragg officials and the Pentagon lawyer about the plea deal.

Pohl 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," Pohl said.

A female captain with whom the married general admits having a three-year affair says he twice force her to perform oral sex while they were stationed in Afghanistan in 2011. Sinclair is believed to be the highest ranking U.S. military officer to ever face trial for sexual assault.

In a December letter sent by her attorney, the female captain at the center of the case opposed the proposed plea agreement. The Associated Press generally does not name those who say they were sexually assaulted.

Writing on behalf of her client, Capt. Cassie L. Fowler suggested the proposed deal would "have an adverse effect on my client and the Army's fight against sexual assault."

"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 political fallout of dismissing the sexual assault charges, the emails turned over to the defense Saturday show they did discuss the assertions made in the letter.

Lt. Gen. James Anderson, as the commander of the base, made the final decision to reject the plea offer. Testifying from Afghanistan by telephone, Anderson said the only thing he weighed to make up his mind was the opposition of Sinclair's primary accuser to the deal.

Last week, Pohl ruled against a defense motion alleging improper command influence after pressing Sinclair's lawyers to provide any evidence such interference took place.

As part of their trial preparations, the defense had repeatedly asked to review emails sent or received by lawyers and commanders involved with the case. Prosecutors had opposed handing over the emails.

But on Saturday, prosecutors did hand over the emails now at issue, saying they had just received them in recent days. By law, prosecutors are required to hand over any evidence that might be helpful to the defense.

Richard Scheff, the general's lead defense lawyer, told the judge Monday that the Army had been stonewalling him for months.

"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."

Pohl appeared frustrated with prosecutors, peppering them on why they had failed to hand over the emails prior to last week's hearing on the issue.

"I am telling them they had to show me something and (the government) had these emails in their possession," Pohl told the lead prosecutor. "How do we know what else is out there at this point?"

In a December 16 email, the deputy staff judge advocate at Fort Bragg, Lt. Col. James Bagwell, corresponded with Brig. Gen. Paul Wilson, the assistant judge advocate general for military and operational law based in Washington.

At the time, Bagwell was advising Fort Bragg's top commander on whether to accept an offer from Sinclair to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges.

In the email, Bagwell asked Wilson for his opinion about the plea offer. Bagwell testified Monday that he later spoke with Wilson by phone. Wilson was previously stationed at Bragg and Bagwell described him as mentor.

"We very briefly discussed our personal opinions on the case," Bagwell said. "He gave me his opinion."

However, Bagwell testified that Wilson, a superior officer, never directed him on what he should do.

After Pohl denied the defense motion last week, Sinclair pleaded guilty to three lesser charges involving adultery with the captain and improper relationships with two female Army officers. Adultery is a crime in the military.

A trial then began on the remaining sexual assault charges.

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Associated Press writer Jeffrey Collins in Columbia, S.C., contributed to this report.

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Follow Associated Press writer Michael Biesecker at Twitter.com/mbieseck