Judge Col. James Pohl reviewed newly disclosed emails and said he found evidence of unlawful command influence in Fort Bragg officials’ decision to reject a plea deal before the trial. Under military code of justice, the decision was supposed to be decided solely based on evidence in the case — and not its broader political implications in a military grappling with sexual assault cases.
Pohl gave the defense team the choice of having a different commanding general and prosecutors consider the rejected plea deal. The defense has until Tuesday morning to decide whether to accept the offer or allow the trial to proceed.
Before the trial, Brig. Gen. Jeffrey A. Sinclair had offered to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges, but he was turned down.
A key issue is whether the rejection was influenced by concerns about the message it would send across the military. A letter by Sinclair’s primary accuser that raised such concerns was discussed in emails between a high-ranking Washington-based Army lawyer, the prosecutors and the commanding general overseeing the case.
Pohl said he doesn’t think the whole case was tainted, just decision on plea agreement.
“The remedy must be tailored to the wrong,” he said in explaining his offer to the defense.
Pohl 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,” Pohl said.
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.
The female captain, with whom the married general admits having a three-year affair, says he twice forced 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 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.
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 Sinclair’s plea offer.
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.
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