Ouster of prosecutors sought in sex misconduct court-martial

FT. BRAGG, N.C. — Lawyers for an Army general accused of sexual misconduct with female officers under his command sought Tuesday to remove the prosecution team from his court-martial for possessing emails protected by lawyer-client privilege.

In a defense motion, a military judge was asked to disqualify four military prosecutors because emails from Brig. Gen. Jeffrey A. Sinclair to his lawyers, wife and pastor inadvertently ended up in prosecution hands. Those communications enjoy protected legal status and are not to be viewed by prosecutors.

The judge, Col. James L. Pohl, said he would rule later on the defense motion. Pohl heard testimony Tuesday from 10 defense witnesses — including the four prosecutors — about how emails from Sinclair’s private Google account were mistakenly delivered to the prosecution team.

All four prosecutors testified that they never read any of the protected emails. Other witnesses, including military investigators and paralegals, traced a complicated series of computer-based compilations of 35,000 pages of Sinclair’s emails. But they could not clearly explain how they ended up with prosecutors.

A military paralegal who read the emails testified that about three-fourths were between Sinclair and his lawyers, wife or pastor. Many of the others were between the general and women with whom he is accused of having improper sexual relationships.

Sinclair, a veteran of five deployments to Iraq and Afghanistan, is charged with forcible sodomy, wrongful sexual conduct, adultery, violating orders and other offenses. He could face life in prison if convicted on the most serious charges.

Sinclair’s military lawyers argued that Sinclair could not get a fair court-martial unless the prosecutors were removed.

“We’re not asking for a walk,” Lt. Col. Jackie Thompson told the judge. “We want a case that is free from the taint” of any violation of attorney-client privilege.

Thompson said prosecutors were liable for any mistakes made by military investigators in handling evidence.

Sinclair, a 27-year Army veteran and father of two, is accused of improper sexual relationships with four subordinate female officers and a civilian. Prosecutors say he forced a captain to engage in oral sex and threatened to kill the officer and her family if she told anyone.

The general is accused of having sex with women in his office in Afghanistan with the door open, on a plane, in a parking lot and on a hotel balcony. The acts took place in Afghanistan, Iraq, Germany and on bases in the United States, according to prosecutors.

Sinclair, who was removed from command in Afghanistan in May, is also charged with possessing pornography and alcohol while deployed and using a government charge card for personal expenses. He is now assigned to special duty at Ft. Bragg.

Sinclair did not enter a plea at Tuesday’s hearing. Wearing a blue dress uniform and jump boots, his hair cropped in a tight crew cut, he leaned back in a chair at the defense table, listening intently to testimony and at times chewing furiously on gum.

At a hearing here in November, the general’s lawyers conceded that he had an affair with a subordinate but said it was consensual. In media interviews, Sinclair’s wife, Rebecca Sinclair, has said that her husband is innocent because the woman was a willing participant.

The woman, an Army captain, testified in November that Sinclair twice forced her to perform oral sex. Asked by a prosecutor whether the general would have been able to tell that she did not want to participate, she replied, “Yes, I was crying.”

The captain testified that Sinclair used degrading language to describe other women, and that when she challenged him, he replied with a vulgarity, telling her he could say whatever he wanted because he was a general.

Sinclair is charged with attempting to call the captain on her cellphone after his commander ordered him to cease all contact with the woman, who came forward in March with her allegations. Sinclair is also accused of directing a female major to send him nude photos.

He was the 82nd Airborne Division’s deputy commander for logistics and support in Afghanistan before he was relieved of duty.

The general is charged with 25 violations of the Uniform Code of Military Justice between October 2007 and March 2012.

The judge scheduled the trial portion of Sinclair’s court-martial for May 13. Witness lists include the names of prominent Army commanders: Gen. Ray Odierno, Army chief of staff; Gen. Lloyd J. Austin III, Army vice chief of staff; and Lt. Gen. Curtis Scaparrotti, director of the joint staff at the Pentagon.

If Sinclair chooses to be tried by an Army panel rather than a judge, the panelists who will decide his fate will be high-ranking generals.

david.zucchino@latimes.com