FT. BRAGG, N.C. —
The defense accuses the Army chain of command of pursuing the most serious charges to demonstrate that the military is getting tough on accused sex offenders — even though senior commanders have concluded that Sinclair's accuser lied.
The defense says the lead prosecutor, Lt. Col. William Helixon, withdrew from the case Feb. 10 after failing to persuade the Army to drop the most serious charges.
"Helixon repeatedly stated that the case against BG Sinclair should not be prosecuted, but that the Army was forcing the case to move forward," defense attorney Richard L. Scheff wrote in moving for a dismissal. Scheff says Helixon told him he felt "ethically bound" to withdraw. Helixon, who has not commented, is on the defense witness list.
But the new prosecutor, Lt. Col. Robert C. Stelle, adamantly denied that Helixon believed the general was not guilty of sexual assault, or that he had withdrawn from the case for ethical reasons.
"At no time did LTC Helixon state that the accused is not guilty of the charged offenses," Stelle wrote in a document submitted to the court, adding that Helixon "did not have legal, ethical issues with the case going forward."
Stelle said Helixon left the case while "in a state of extremely emotional distress," caused by "the confluence of a number of factors, most of which had nothing to do with this case."
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Pretrial testimony by the accuser, a female Army captain who is now 34, has provided details of a passionate three-year affair with the general that included sex in a parked car, on a hotel balcony and in a military office in Afghanistan. The captain, 29 when the affair began, testified that Sinclair, 51, forced her to have oral sex after their relationship soured and threatened to kill her and her family if she revealed the affair.
Sinclair says the affair was consensual throughout, and his lawyers say the captain pursued the general. Sinclair denies that he threatened anyone or forced his lover into oral sex.
Defense attorney Scheff, citing conversations he said he shared with Helixon, wrote in a Feb. 21 motion that senior commanders all the way up to Army Chief of Staff Gen. Raymond Odierno had concluded that any charges based on the accuser's testimony "are likely to fail" because prosecutors had come to believe the accuser is a "liar" who repeatedly deceived them.
The defense contends the accuser perjured herself on the stand Jan. 7, and lied earlier to Helixon about a cellphone she said she found in December while unpacking boxes from Afghanistan. The defense says the phone contains text messages between the accuser and Sinclair. Sexually charged texts and messages have been described in previous court hearings, including the accuser's pet name for the general: Papa Panda Sexy Pants.
According to the defense, testimony by forensic experts indicated the accuser lied about when she found the phone and whether she used it. That, Scheff argued, undermines her allegations against Sinclair.
Stelle, the prosecutor, acknowledged that the accuser's cellphone testimony "does tend to conflict, on its face, with the forensic analysis'' of the phone. For that reason, he said, Helixon favored accepting Sinclair's offer to plead guilty to lesser charges because of "tactical concerns."
But any inconsistency in her phone testimony "does not automatically lead to the conclusion that she is lying about those particular facts; and it certainly does not automatically lead to the conclusion that she is lying about everything else," Stelle wrote.
The defense contends the case is going forward on the order of senior Army officers who have exerted "unlawful command influence." Public concern over widespread sexual assault in the military has made it politically difficult to drop the charges, they allege.
Stelle disputed that, saying there was no evidence of unlawful command influence. The defense allegation, he said, was built on "speculative, hasty conclusions."
The defense also argues that Sinclair cannot get a fair trial before a panel of five fellow generals because the Army and the Obama administration have demonized anyone in the military accused of sexual offenses. Scheff cited comments by President Obama that anyone "engaging in this stuff" should be fired, stripped of rank and court-martialed.
If convicted of the most serious charges, Sinclair could face life in prison. He is also charged with adultery, pressuring two other female officers to send him nude photos, possessing alcohol and pornography in a war zone, and abusing his government charge card to pursue liaisons with the captain.
The general has offered to retire at a reduced rank and plead guilty to lesser charges of adultery and conduct unbecoming an officer.
In a defense narrative not submitted to the court, Scheff wrote that Helixon told him in September that the Pentagon had deemed the Sinclair case "mission critical."
After Stelle submitted his response, the defense team said, Scheff was asked to submit a memo detailing his exchanges with Helixon — referred to by Stelle as "purported conversations."
In a "hold on to your hat" memo, Scheff said he wrote to his defense team after an hourlong phone conversation he said he had with Helixon on Feb. 9. Scheff said that Helixon "didn't want to prosecute the case but that he was being forced to do so." He said Helixon referred to Sinclair as a "stellar soldier" and "a hero."
Helixon volunteered several times to testify as a defense witness, Scheff wrote. Some of the memo, provided by the defense, was redacted to remove references to others involved in the case.
Stelle wrote that Helixon "will testify specifically that he does not question [the accuser's] allegations concerning the accused's misconduct."
The accuser made her allegations in March 2012. Sinclair, a decorated 27-year veteran of five tours in Iraq and Afghanistan, was recalled to Ft. Bragg from his post as deputy commander of U.S. forces in Afghanistan.
Sinclair, a married father of two boys, has been backed by his wife, Rebecca Sinclair, despite his admitted adultery. His legal team hired a New York public relations firm that maintains a website supporting Sinclair and has accused the Army of trumping up charges against the general.