Army General’s Lawyers Seek Dismissal of Sexual Misconduct Charges
By RICHARD A. OPPEL Jr.
FEB. 21, 2014
One week after the lead prosecutor in the court-martial of Brig. Gen. Jeffrey Sinclair abruptly quit the case, defense lawyers have asked a military judge to dismiss sexual misconduct charges against General Sinclair in a motion that asserts that officials all the way up to Gen. Raymond T. Odierno, the Army chief of staff, have acknowledged weaknesses in the case.
Brig. Gen. Jeffrey A. Sinclair with his wife, Rebecca, in July. He is facing a court-martial over charges of sexual misconduct.Lead Prosecutor’s Abrupt Departure Rattles a Military Sexual Assault CaseFEB. 14, 2014
In documents submitted to the judge, the defense argues that developments over the past six weeks demonstrate that senior military officials, worried about pressure from politicians to show they are getting tough on sexual assaults, have exerted “unlawful command influence” on the prosecution. The defense says the military has refused to seriously consider reducing any charges, despite recent evidence that the main prosecution witness lied during testimony in January, and what they say were efforts by the former prosecutor, Lt. Col. William Helixon, to get the military to drop the most serious charges after he concluded the jury was unlikely to believe her.
General Sinclair, 51, was deputy commander of American forces in southern Afghanistan two years ago when he was recalled to Fort Bragg, N.C., after the military began investigating his relationship with the witness, an Army captain, now 34, who once worked for him. The general has acknowledged a three-year affair with the woman but denied her accusation that he forced her into oral sex and threatened to kill her and her family if she told anyone about the affair.
One of only a handful of generals to face courts-martial in recent decades, General Sinclair, who is married, could face life in prison if convicted of the most serious charges. He also faces other, lesser charges based on testimony of other soldiers, and he has offered to retire at a reduced rank and plead guilty to conduct unbecoming an officer and adultery, which is punishable under military law.
Colonel Helixon did not respond to requests for comment; a Fort Bragg spokeswoman has said he left the prosecution voluntarily, for “personal reasons.” Army officials at the Pentagon declined to comment, and both the witness and her military counsel said they were not allowed to discuss the case.
Ben Abel, another Fort Bragg spokesman, said in an email that the court-martial is still set for March 4. The defense says the new lead prosecutor is Lt. Col. Robert Stelle, who helped prosecute some of the Army’s highest-profile defendants in recent years, including Staff Sgt. Robert Bales, who pleaded guilty to killing 16 Afghan villagers. Colonel Stelle declined to comment.
General Sinclair’s lawyers, Richard L. Scheff and Ellen C. Brotman, say Colonel Helixon has told them he believed the witness lied on the stand in early January about an old cellphone. The lawyers say the phone contains messages and other evidence of the affair, which they assert was consensual.
The accuser said she did not find the phone until Dec. 9, shortly after three days of meetings with prosecutors. But a defense expert testified that forensic analysis showed the phone had been charged and restarted several weeks earlier.
And according to another new document submitted to the judge, the prosecution’s own forensic experts found that the phone appeared to have been repeatedly turned on beginning several weeks before the date the witness said she had found it. That document, a PowerPoint that the defense says was written by prosecutors, states that it was “also possible that an existing photo may have been deleted from the device” before it was handed over to investigators.
Another document submitted to the judge is what the defense says is a Feb. 3 email from Colonel Helixon to Mr. Scheff disclosing that the witness told prosecutors at a meeting on Jan. 26 that, contrary to earlier testimony, she actually found the phone in November, “but did not really think about it and that she plugged it into the wall.”
In their motion, defense lawyers also recount details of a conversation they contend Colonel Helixon said he had with a senior Army lawyer, Brig. Gen. Paul Wilson, in which General Wilson stated he also believed the accuser had lied.
The motion adds that Colonel Helixon told the defense team that General Odierno “knew that BG Sinclair would be acquitted of the sexual misconduct charges.” The motion also said Colonel Helixon told the lawyers, that “the Army was forcing the case to move forward.”
The motion asks the military judge to compel testimony from Colonel Helixon, General Wilson, military lawyers and public affairs officers at Fort Bragg, and from Lt. Gen. Joseph Anderson, commander of the Army’s XVIII Airborne Corps, who recently deployed to Afghanistan.
The defense team says General Anderson denied their plea offer on Jan. 16, without consulting Colonel Helixon, and without waiting to hear results of the meeting prosecutors had 10 days later to confront the accuser about her testimony.