Wednesday October 7th, 2015 2:34AM

General's defense to try for plea deal in sex case

By The Associated Press
FORT BRAGG, N.C. (AP) -- A military judge on Tuesday dismissed the jury in the midst of an Army general's court martial on sexual assault charges to give prosecutors and defense lawyers time to hammer out a plea deal in the closely watched case.

Judge Col. James Pohl made the highly unusual move after new evidence indicated that political concerns may have improperly influenced military officials' rejection of a previous plea offer by made by Brig. Gen. Jeffrey A. Sinclair.

A jury of five two-star generals had assembled at Fort Bragg last week from as far away as Korea and Alaska to decide the case. They appeared confused as the judge sent them back to their duty stations around the world, saying they may or may not be asked to return.

"There are other issues that have come up in this trial," Pohl told the jurors as he dismissed them. "Sometimes there are twists and turns you can't anticipate."

Pohl reviewed newly disclosed emails in Sinclair's case Monday 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. He declined a request from the defense to dismiss the charges outright, but allowed the trial to be delayed indefinitely while Sinclair's lawyers negotiate with a new set of Army officials not previously involved with the case.

If they fail to reach a deal, the trial would resume. But with the jury sent packing, it appeared highly unlikely that would happen anytime soon.

The latest upheaval in the Sinclair case comes as the Pentagon under heavy pressure from Congress and beyond to combat rape and other sex crimes in the military. The long-awaited trial began last week after two earlier start dates were delayed and the replacement of the lead lawyers for both the defense and prosecution teams.

Under the military code of justice, the decision on whether to accept the Sinclair's plea offer was supposed to be decided solely on the evidence, not its broader political implications for the Army's fight against sexual assault.

But 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."

Sinclair, 51 and the former deputy commander of the 82nd Airborne Division, is accused of twice forcing a female captain to perform oral sex on him in Afghanistan in 2011 during a three-year extramarital affair. He has admitted to the affair but denied assaulting the woman.

The defense has portrayed the woman as a liar who concocted the allegations after she saw emails suggesting a romantic relationship was developing between Sinclair and another young officer.

Sinclair, believed to be the highest-ranking U.S. military officer court-martialed on sexual assault charges, appeared upbeat as he left the courthouse Tuesday morning, joking with the military police officers who guard the door.

Lead defense attorney Richard Scheff said Sinclair would not agree to plead guilty to any charges involving sexual assault or any charges that would result in his being required to register as a sex offender.

"He did not sexually assault anybody," Scheff said. "He did not threaten anybody. He's not maltreated anybody. We'd love to resolve the case. But if we can't, we look forward to our day in court and his vindication."

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.

In December, 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.

Sinclair's plea offer was discussed in emails among a high-ranking Washington-based Army lawyer, the prosecutors and the commanding general overseeing the case.

The judge said he doesn't think the whole case was tainted, just the decision on a plea agreement. The judge 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."

Last week, Sinclair pleaded guilty to three lesser charges involving adultery with the captain and improper relationships with two other female Army officers. Those charges could bring 15 years in prison. A trial then began on the remaining sexual assault charges, with a potential sentence of life in prison.

Now, with Tuesday's decision, the defense may ask Pohl to withdraw Sinclair's guilty plea in favor of whatever new deal can be hashed out with the Army. In addition to the sexual assault charges, Sinclair still faces charges he defrauded the Army by spending more than $4,000 in taxpayer money on flights, hotel suites and other expenses to visit his mistress.

Sinclair's accuser came out against a plea bargain on the sexual assault charges in a December letter sent by her attorney, Capt. Cassie L. Fowler. Fowler suggested that the proposal 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 fallout, the emails turned over to the defense Saturday show they did discuss her assertions. One top military lawyer at Fort Bragg quoted her letter and said he found Fowler "very preachy."

It was Lt. Gen. James Anderson, as commander of Fort Bragg, who made the final decision on whether to accept Sinclair's plea offer.

Testifying from Afghanistan by telephone, Anderson said Monday that he didn't thoroughly read Fowler's letter. The only thing he weighed in rejecting the deal was that the accuser wanted her day in court, he said.

But Anderson's testimony appeared to be contradicted by a Dec. 20 email he sent to a military lawyer. "I have read the letter and made my decision," Anderson wrote.
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