Judge in Sinclair case scolds military prosecutors; weighs new evidence

DURHAM, N.C. -- An angry military judge scolded U.S. Army prosecutors Monday for failing to turn over evidence to lawyers for Brig. Gen. Jeffrey Sinclair in his sexual assault court-martial.

The judge, Col. James L. Pohl, dismissed the jury for the day and granted a defense motion to reconsider his dismissal last week of a request to drop all charges against Sinclair. The general’s lawyers say he cannot get a fair trial because the case has been tainted by “unlawful command influence,” or political interference, by top Army officials.

The judge gave prosecutors one hour this morning to produce phone testimony from Lt. Gen. Joseph Anderson, the former Ft. Bragg commander now serving in Afghanistan. Anderson last year rejected an offer by Sinclair to plead guilty to lesser charges and retire at reduced rank when Anderson was the “convening authority”’ in the case. He was replaced when he deployed to Afghanistan in January.

Pohl’s rulings Monday came after prosecutors over the weekend gave defense lawyers emails suggesting that senior Army legal officers had serious doubts about the credibility of the Army captain who has accused Sinclair of forcing her to perform oral sex and threatening to kill her and her family if she disclosed their three-year affair.

The judge upbraided prosecutors, demanding to know why they turned over the emails this weekend, five days after Pohl ruled on the defense motion and after testimony began in the court-martial on Friday.

“Do we have to wait two months in the middle of the trial before we get these?’’ Pohl asked, his voice rising.

“When does it end?” Pohl asked the lead government prosecutor. “You dribble discovery to the defense ... we have hearing after hearing ... and then a little more comes out.”

Richard Scheff, Sinclair’s lead attorney, told the judge that he had been deceived and “stonewalled” by prosecutors regarding the emails. When asking for emails in pre-trial discovery, Scheff said, prosecutors accused him of going on “a fishing expedition.”

“Every time, we catch fish,” he said, referring to the emails received over the weekend and other emails provided earlier.

Scheff described unlawful command influence and political interference as “a cloud hanging over this case.’’

“How can anyone have confidence in this process?” he asked the judge, who did not contradict him.

The emails appear to show that there was concern among Army officials about the accuser’s truthfulness -- in addition to similar concerns cited by the lead prosecutor before he quit the case last month after failing to persuade the Army to drop the most serious charges against Sinclair.

The accuser testified Jan. 7 about a cellphone she said she found while unpacking boxes on Dec. 9, long after evidence in the case was supposed to be turned over. Forensic analysis indicated that the woman lied about when she found the phone and what she did with it. The phone contains messages to and from Sinclair.

“It is possible that she was not truthful,” Col. Michael Lacey, a senior military lawyer at Ft. Bragg, wrote in an email to Anderson on Jan. 8, the day after the accuser testified.

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.’’

Anderson’s testimony is important because the email from Lacey told him that the accuser appeared to have lied on the stand.

In addition, an email from an Army legal advisor to Anderson refers to a letter Anderson received earlier from the accuser’s special victim’s advocate. The advocate wrote that accepting Sinclair’s plea “would have an adverse affect on my client and the Army’s fight against sexual assault.’’

The advisor, Lt. Col. Jerrett Dunlap, wrote to Lacey on Dec. 18 that Dunlap had just met with Lt. Gen. Anderson, who agreed that the Army could not accept the plea offer. “The letter made if [it] an easy decision,’’ Dunlap wrote.

The judge wants to hear from Anderson about the influence of the victim advocate’s letter on his decision to reject Sinclair’s plea offer. In dismissing the defense’s motion last week, the judge said the victim’s advocate’s was inappropriate.

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 an offer by Sinclair to plead guilty to lesser charges.

“For my part it’s 90 percent 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.

On the witness stand Monday, Bagwell said he contacted Wilson without the knowledge of Bagwell’s fellow legal officers at Ft. Bragg because Wilson was his mentor and had served on the legal staff at Ft. Bragg.

But Bagwell said Wilson did not offer any advice on how the Army should respond to Sinclair’s plea offer: “Absolutely not, in any way shape or form.’’

Bagwell said Wilson did not email him back but responded in a phone call that touched only briefly on the Sinclair case.

Under cross-examination by Scheff, Bagwell said he considered the offer “reasonable” and “feasible,’’ and thought it was 90% on the way to approval.

Questioned by the judge, Bagwell said the plea offer was “off the table’’ after Army lawyers conferred with the witness, who opposed signing the plea deal.

Sinclair, 51, the former deputy commander of U.S. troops in southern Afghanistan, pleaded guilty Thursday to adultery, inappropriate relationships with two other female officers; attempting an inappropriate relationship with a third; impeding an investigation, and viewing pornography while on duty. That was a tactical move by the defense to avoid salacious accounts of philandering and pornography, and to focus instead on attacking the accuser’s credibility.

The accuser testified Friday that Sinclair twice forced her to perform oral sex at a military base in Afghanistan. She also said he groped her against her will and grabbed her by the neck during an argument in a hotel room in Arizona.

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