The following is a synopsis of the investigation, charges, and Court-Martial of US Army Brigadier General Jeffrey Allen Sinclair, the highest ranking military officer to be charged with sexual assault. The events of the Sinclair case took place with a backdrop of an ongoing controversy regarding rates of sexual assault in the US military, with political interests involved, the usual over-wrought handwringing involved in any moral panic, the unique military justice issue of command influence, and a recent history of politicization of the military justice system. Many of you will not like what follows. Such is life.
Long story short–Sinclair is a major dickhead on multiple levels. But that’s not illegal in any jurisdiction. His accuser lied about facts about the case, and may have perjured herself, and was not regarded as a credible witness by anybody. The Army, seeking to quell the political issues, and some members of the chain of command, possibly going as far as the Chief of Staff, broke the law in seeking to influence the prosecution and the court.
DISCLOSURE—In 1993 I was falsely accused of rape by a subordinate, and confined in pre-trial confinement in Mannheim, Germany for five weeks. My confinement was ended and no charges were preferred after the Article 32 investigation revealed that my accuser had lied in order to prevent my unit from processing her out of the Army for failure to adapt to military life. Since events that transpired in mid-February in the case, I’ve had flashbacks, panic attacks, and anger management issues. This is the primary reason that I haven’t been around a great deal. I’ve gone round and round with myself about whether or not I should say anything, but I decided in the end that I needed to put this out there. For those who don’t know, or who didn’t serve extensively in the 90s and later, the idea that the Army doesn’t take sexual assault allegations seriously is sadly laughable. The Army routinely prosecutes cases that would never result in charges in civilian jurisdictions. Civilian Defense Counsel of my acquaintance regularly comment on the amount of easy work they get defending military personnel from charges that are easily defeated because they cannot be proven, even in the military’s relatively prosecution-friendly environment. Convening Authorities frequently prefer charges and let the courts-martial figure it out rather than refuse to prosecute cases that their own advisers recommend to not go forward. Had my unfortunate incident happened today, I’d likely be remaining in confinement and going to trial even in the absence of DNA evidence.
Public awareness of BG Jeffrey Sinclair began in mid-May, 2012 with a report in the Fayetteville (NC) Observer that Army Criminal Investigation Command (CID) was investigating him for various charges, and that he had been recalled from Afghanistan to Fort Bragg, NC. At the time of the beginning of the investigation, BG Sinclair was serving as Deputy Commanding General for Support, 82nd Airborne Division. Note—assignment of a field grade officer or general officer to that division is generally considered to be a mark of prestige, such postings given to the best of the best, men and increasingly women who are recognized as rising stars destined for higher rank.
On the 16th of September, 2012, BG Sinclair was charged with forcible sodomy, wrongful sexual contact, adultery, violating a lawful general order, violating a lawful order, possession of pornography and alcohol while deployed, misusing a government travel charge card, and filing fraudulent claims. The Article 32, UCMJ hearing began in early November, 2012. Right from the start, the Government ran into difficulties. Sinclair’s counsel made an issue over 16,000 emails that CID had obtained that were privileged confidential attorney-client communications, and had been marked as such in the subject lines of those emails. Counsel asked the hearing officer, then-Major General (MG) Perry Wiggins, to dismiss the charges due to misconduct by the Government and after a brief hearing, this was refused. NOTE—Wiggins was the Deputy Commanding General, US Army North and 5th US Army at the time, and has since been promoted to Lieutenant General (LTG), USANORTH/5A, Commanding.
On the 18th of December, 2012, LTG Daniel B. Allyn, 18th Airborne Corps and Fort Bragg, Commanding, referred charges against BG Sinclair. Military Judge Colonel (COL) James Pohl, JA(RET) was recalled to active duty and appointed to preside. LTG Allyn was the first General Officer in BG Sinclair’s chain of command after his relief from 82nd ABN, and as such was the General Court-Martial Convening Authority. In February of 2012, some of BG Sinclair’s supporters created a website and began releasing to the public information that was part of the Article 32, UCMJ hearing records. This information included text messages between BG Sinclair and his primary accuser, so that information that military defense lawyers could not release to the public would be put out there to combat, as one contributor put it “Army prosecutors have carefully managed a public relations campaign to try and convict General Sinclair in the public sphere, before he even has his day in court.” Note–This is indicative, along with having four paid civilian defense counsel, of the fact that Generals have more resources at court-martial than Sergeants and Privates do. In that respect, the military justice system is unfortunately very much like the civilian criminal justice system.
Neither the general, his wife nor lawyers are directly involved in the website, said Carreen Winters of MWW, a New York public relations firm hired by Sinclair’s supporters. Winters says the general’s military attorneys, unlike civilian lawyers, can’t mount a public defense in this very public case. “The facts are his best friend,” Winters said in an email to the Los Angeles Times.
I’ll just note here that I’ll never be able to unlearn the term “papa panda sexy pants” that Sinclair’s accuser used for him before things went sideways between them.
In May, 2013, Judge Pohl held a four-day hearing to assess multiple claims of Unlawful Command Influence, and scheduled the trial to begin June 25th, 2013. Unlawful Command Influence, or UCI for short, occurs when the Convening Authority or other members of the chain of command use their positions to encourage certain trial outcomes that might not be reached by an impartial trier of fact or law. It can also occur when government counsel are pressured to pursue charges that may not be supported by the available evidence. One of the most glaring UCI claims made by the Defense team was that General Officers of the Army, knowing that Congress members would halt or damage their careers if Sinclair were not convicted, were doing everything they could do to stack the case against him. Subsequent to this, Judge Pohl issued the first of what would be many postponements, this one to July, 2013, and most of the charges and specifications related to pornography were dropped by the Government. The Defense elected trial by members panel, which caused another delay. NOTE– as the panel could only be members who were equal or higher in rank than the accused, and who did not know the accused or officers on the witness list (several Generals themselves,) this was a brilliant delaying tactic. There are 231 General Officers in the Army, not including retired GOs subject to recall. This is a very small community of people who usually know each other after long careers.
It wasn’t until August 14, 2013 that the trial commenced, with a panel of five General Officer members. NOTE—A military panel of members is NOT a jury. Only for capital cases are they required to reach a unanimous verdict. In this case, it would take guilty verdicts by three of the five members to convict on any charge or specification. Testimony was at times sordid. The trial was delayed again on September 25, 2013 so that the Court of Appeals for the Armed Forces (CAAF) could consider an appeal by the Defense of Judge Pohl’s ruling in pre-trial denying a Defense motion to dismiss the case with prejudice due to UCI.
The defense team has appealed a decision by the military judge, Col. James Pohl, to deny pretrial motions seeking to have the bulk of the case thrown out. Sinclair’s lead defense lawyer, Richard Scheff of Philadelphia, has raised several motions concerning unlawful command influence, or UCI. The defense argues that President Obama’s public promises to pursue and punish sexual predators in the military put improper pressure on the Pentagon to charge Sinclair, despite what his lawyers contend is a weak case by the prosecution. Scheff told The Associated Press the government agreed with his assessment to delay the trial. “Separately, we have sought appellate review of the denial of our UCI motions, and that is working its way through the system as well,” he said.
On October 5, 2013, CAAF denied the Defense appeal. From the CAAF daily journal for that date: Misc. No. 14-8001/AR. Jeffrey A. SINCLAIR, Appellant v. United States of America, and James L. Pohl, Colonel, U.S. Army, Military Judge. CCA 20130751. On consideration of the writ-appeal petition, Appellant’s motion for a stay of proceedings, and motion to appear pro hac vice, said motion to appear pro hac vice is hereby granted, said motion for a stay of proceedings is hereby denied, and said petition is hereby denied without prejudice to Appellant’s right to raise the issues asserted during the course of normal appellate review.
But then the trial blew up on February 15, 2014. The lead Government Counsel (prosecutor) recused himself from the case.
The departure of the prosecutor, Lt. Col. William Helixon, JA came just days after defense lawyers said in interviews that the colonel told them that he had come to believe that a jury would not believe the testimony of the prosecution’s chief witness, a 34-year-old captain who had lodged the charges.
According to the defense, Colonel Helixon also disclosed that he believed the captain had not told the truth during testimony at a pretrial hearing.
It was impossible to confirm the defense team’s description of conversations with Colonel Helixon, who did not respond this week to emails or to messages left on his wife’s cellphone. Army officials at the Pentagon declined to comment.
NOTE—LTC Helixon’s only public statement to date regarding this trial and his recusal are that he was suffering an illness such that he could not continue as lead government counsel.
Counsel for the Accused, as Defense Counsel are titled in military courts-martial, had raised questions about her testimony in January, when she stated under oath that she had found an old cellphone in December, 2013, after she finished a sworn deposition with government counsel. A forensic computer expert hired by the Defense testified that the captain had charged, restarted, and attempted to use the phone several weeks earlier than she had claimed to have found it. The CID forensic computer specialist agreed with that assessment.
In the third week of February, 2014, the Army named new lead government counsel to replace LTC Helixon. According to an AP story that I cannot find but have seen referenced, the new prosecutor had “indicated that the woman’s immunity agreement remains intact and that the case will proceed to trial.” On the 24th of February, 2014, the defense filed another motion with the court requesting that the charges be dismissed on the grounds of UCI.
Sinclair said in a motion filed last Friday that he offered in December to plead guilty to adultery, which is a crime in the military. Lead prosecutor Lt. Col. William Helixon recommended to superiors last month that the offer be accepted, and he recused himself from the case on Feb. 10 after he was told to press forward with the court-martial, according to the motion. The defense contends that the captain, who served with Sinclair in Iraq and Afghanistan, committed perjury in a January hearing about finding text messages form Sinclair on an old cellphone, making her a poor witness on which to build a case against the general. The captain said in the January hearing that she came across the old phone in December and charged it up to see if there was anything on it that would affect Sinclair’s court-martial. A defense forensics expert contradicted her testimony, saying she had turned the phone on several times in the months before she said she found it packed in a box. The defense argues in the motion that the Army continues to press the case only to support a get-tough policy against sex assault in the military. “The (fact) that top military leaders outside the proper chain of command have injected themselves into these proceedings and the current political environment has instilled fear into any officer with authority in connection with a sexual assault prosecution, leads to no other conclusion than the decision-makers in this case fear the adverse personal and political consequences of taking the ethically, morally, and just action of dismissing the charges that rely upon the testimony of the Government’s discredited primary accuser,” the motion states. “Because no reasonable observer could possibly determine that such a proceeding was fair and just, this case should be dismissed as a result of unlawful command influence.”
See also this story that includes details of the motion to dismiss for UCI, the allegations of influence from the very top of the Army: “The motion also claims that Helixon has disclosed that General Ray Odierno, the Army’s top commander, is ‘aware that the charges relying on the captain’s testimony are likely to fail.’” And that further, “During a February 9 phone conversation between Helixon and Scheff, the motion says Helixon ‘acknowledged Sinclair was not guilty of sexual misconduct charges, nor did he deserve to be dismissed from the Army, go to jail or register as a sex offender.’ It says Helixon believed that ‘politics and outside pressures were driving forces pushing the case forward,’ telling Scheff that former 18th Airborne Corps SJA, Brigadier General Paul Wilson, would be ‘in charge’ of the prosecution.”
Note—SJA is short for Staff Judge Advocate. Basically the top lawyer for 18 ABN Corps was set to prosecute the case himself at that point. This is unusual in the extreme. Also, GEN Odierno is the Army Chief of Staff, the highest ranking Soldier in the Army.
After many delays, the General Court-Martial US v BG Jeffery Allen Sinclair finally convened at Fort Bragg, NC. On Wednesday, March 5, 2014. The next day, BG Sinclair entered blind pleas (no plea agreement with the Convening Authority) of guilty to nine specifications of three charges. The defense renewed their offer for a plea agreement on some of the remaining charges and specifications while continuing to maintain Sinclair’s innocence on the forced sodomy, wrongful sexual contact, and the other charges including maltreatment of subordinates and misuse of funds and fraud. That afternoon, the primary accuser, the captain at the center of this case, testified for the government. With cross-examination by counsel for the accused to begin the following Monday, 10 March, the defense renewed their motion to dismiss the charges after 14 pages of emails were provided to the defense by the government over the weekend:
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 Ft. 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 it’s 90% there,” Lt. Col. James Bagwell, whose title is Chief, Military Justice at Ft. 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.
The case fell apart completely at that point. Judge Pohl ruled on the motion to dismiss for UCI that afternoon:
The sexual assault case against an Army general was thrown into jeopardy Monday when the judge said the military may have improperly pressed ahead with a trial to send a message about its determination to curb rape and other widespread misconduct.
Judge Col. James Pohl refused to dismiss the charges against Brig. Gen. Jeffrey A. Sinclair but offered the defense another chance to plea-bargain the case with a set of military officials not previously involved with the matter.
The judge reviewed newly disclosed emails in Sinclair’s case and said he found the appearance of “unlawful command influence” in Fort Bragg officials’ decision to reject a plea bargain with the general in January.
Under the military code of justice, the decision was supposed to be decided solely on the evidence, not its broader political implications.
Pohl said the emails showed that the military officials who rejected the plea bargain had discussed a letter from the accuser’s lawyer. The letter warned that allowing the general to avoid trial would “send the wrong signal.”
See also, The New York Times, March 10, 2014 “Faulting Army, Judge Puts Off Assault Case”
Also on March 10th, from Reuters, “U.S. general’s sex crimes trial delayed indefinitely”:
A military judge dismissed jurors shortly after the case resumed on Tuesday without scheduling a restart date.
The judge, Colonel James Pohl, found on Monday that politics had been unlawfully injected into the rare court-martial of Brigadier General Jeffrey Sinclair, but refused to dismiss the sexual assault charges.
The judge said he would allow Sinclair to renew a previous offer, rejected by military leaders at Fort Bragg, North Carolina, to plead guilty to lesser charges in exchange for the most serious allegations of coercive sex acts being dropped.
Scheff said the convening authority in the case, Lieutenant General Joseph Anderson, rejected the offer after the accuser’s lawyer warned Anderson in the letter that it “would have an adverse effect on my client and the Army’s fight against sexual assault.”
The letter from the lawyer, Captain Cassie Fowler, also referred to a debate among U.S. lawmakers about whether prosecution decisions in sexual assault cases should be removed from military commanders.
Also, “The general pleaded guilty last week to lesser offenses that carry a maximum penalty of 15 years in prison and possible dismissal from the Army, but his attorneys said they could move to withdraw that plea after the events on Monday.” Given the situation they had, the defense could have withdrew the guilty plea and demanded to include any of those charges in a plea bargain, or to re-litigate them at another trial. NOTE–For reasons unknown to me, BG Sinclair and his team did not then withdraw their previous guilty pleas. Perhaps he felt that he was actually guilty of those crimes. Or maybe he just wanted to go home at that point. We likely won’t know until someone’s book (inevitably) comes out. It is very concerning that the government had these emails from back in February and January and only just gave them to the accused this last week. They certainly fit within the bounds of the documents demanded by counsel for the accused in their multiple motions to dismiss.
On March 12, the following occurred, as reported by the Washington Post: Attorneys for an Army general charged with sexual assault said Tuesday that they have decided to try to renegotiate a plea bargain with a new set of military officials after the judge determined that the case may have been improperly influenced by political concerns.
Judge Col. James Pohl sent the jury of generals back to their duty stations around the world after attorneys for Brig. Gen Jeffrey A. Sinclair announced their decision. The two sides will enter negotiations to try to resolve the case. A new general and legal advisers would have to be brought in to approve any new deal…
Even though the defense team appeared optimistic it could reach a deal, Scheff said it might still be weeks before the case is resolved.
Lt. Col. Robert Stelle, the lead prosecutor, declined to comment.
On the 17th of March, the accused, BG Sinclair, reached a plea agreement with the new Convening Authority (I don’t know which general this is, but it must be one in a command capacity somewhere in the Army). While the charges that would lead to Sinclair having to register as a sex offender were dismissed, he did plead guilty to Maltreatment of a Subordinate, in addition to the other guilty pleas he had made earlier. This additional charge was described by an unnamed member of the defense team as “critical” to the accuser:
In that portion of the plea document, General Sinclair admits that he treated the captain “in a manner which when viewed objectively under all the circumstances was unwarranted, unjustified, and unnecessary and reasonably could have caused mental harm or suffering during the course of an ongoing inappropriate sexual relationship.”
Sinclair’s final sentence was a judicial reprimand and a fine of $5,000/month for four months. No confinement and no dismissal. This was after Sinclair asked the judge, weeping, to not harm his wife and children who were, as he described them “the only innocent parties” in this whole mess. Were Sinclair dismissed, his wife and children would have no support at all. No income, and no health insurance. Note—before you ask, there is no mechanism under the law by which the Army could give his wife and children a check and benefits but not him.
Apparently, as part of the bargain with the convening authority, he will retire immediately and the CA will approve the retirement (necessitating the CA to disapprove a dismissal from service if adjudged,) and will not contest an administrative action to reduce his retired rank and pay to that of Lieutenant Colonel, O-5, the last rank he held in which he did not commit any criminal acts and therefore served acceptably. He will retire with 27 years of service. Note–It is common in the military to do this to commissioned officers and NCOs who are eligible for retirement but have committed misconduct necessitating their removal from service through administrative means. About three years ago, a Colonel (O-6) Legal Officer named Michael D. Murphy in the USAF was found to have been disbarred when he was a Captain, but didn’t bother to tell his command this. When he was administratively separated after a Court-Martial that did not result in dismissal, he was given the retirement of an officer of the grade O-2, First Lieutenant. A couple of civilian defense counsel of my acquaintance postulate that Judge Pohl issued the sentence he did to send a message to the brass that their behavior was unacceptable. He could have sentenced Sinclair harshly and let the plea agreement take effect, nullifying his sentence, but he chose to do something that was very blatant and very obvious. Being retired, it’s pretty much impossible for him to suffer any consequences for this. He has no career to damage.
Since the results of the Court-Martial do not include confinement for more than six months or a punitive discharge, the sentence is not open to appeal under Article 62, UCMJ. The plea agreement also includes a waiver of appellate rights by the accused.
As a Brigadier General (O-7) with 27 years of service, Sinclair’s base pay is $12105.60/month.
As a Lieutenant Colonel (O-5) with 27 years of service, Sinclair’s base pay is $8675.70/month.
With 27 years of service, the retirement pay rate would be 67.5% of base pay. Therefore, his retired pay would be $8,171.28/month as an O-7, and $5,876.10/month as an O-5, for a difference of $2,315.18/month for the rest of his life. He’s 51 years old, and in supreme physical condition so it is safe to assume he’ll live another 35 years, making his grand total forfeiture $972,375.60
His ability to supplement that income with other employment is highly compromised. Who would hire him?
Now, I know that a huge number of you will be pissed that he’s not being hung up by his balls with a hot poker shoved up his ass for the next 30 years.
The military justice system, as created by Congress and administered by the President exists for two purposes, the first being the administration of justice to members of the military, and the second being a tool for commanders to implement good order and discipline, without which the military cannot function.
Neither of those goals have anything to do with making a bunch of outrage monkeys who don’t particularly care about actual justice, happy. BG Sinclair received the outcome he did because his accuser almost certainly perjured herself and his superiors in the chain of command threw him under the bus in order to show Congress (who doesn’t care about actual justice as much as they do votes) and everybody else (who also do not particularly care about the truth) that they could be hard on sexual assault and get convictions.
If this nation were working right, everybody would actually care about seeing justice done.