Judge weighs improper influence in Army sex case

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Brig. Gen. Paul Wilson leaves the courthouse after testifying in pretrial motions in the case of Brig. Gen. Jeffrey Sinclair, Tuesday, March 4, 2014, at Fort Bragg, N.C. Less than a month before Sinclair’s trial on sexual assault charges, the lead prosecutor broke down in tears Tuesday as he told a superior he believed the primary accuser in the case had lied under oath. (AP Photo/The Fayetteville Observer, James Robinson)

Brig. Gen. Paul Wilson leaves the courthouse after testifying in pretrial motions in the case of Brig. Gen. Jeffrey Sinclair, Tuesday, March 4, 2014, at Fort Bragg, N.C. Less than a month before Sinclair’s trial on sexual assault charges, the lead prosecutor broke down in tears Tuesday as he told a superior he believed the primary accuser in the case had lied under oath. (AP Photo/The Fayetteville Observer, James Robinson)

Brig. Gen. Jeffrey Sinclair leaves the courthouse with his lawyers Richard Scheff, left, and Ellen C. Brotman, following a day of motions Tuesday, March 4, 2014, at Fort Bragg, N.C. Less than a month before Sinclair’s trial on sexual assault charges, the lead prosecutor broke down in tears Tuesday as he told a superior he believed the primary accuser in the case had lied under oath. (AP Photo/The Fayetteville Observer, James Robinson)

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FORT BRAGG, N.C. (AP) — A military judge said Monday that there’s evidence that a high-ranking lawyer at the Pentagon improperly influenced the case against an Army general charged with sexual assault, but he didn’t immediately decide whether to drop the charges.

Military judge Col. James Pohl found that there was the appearance of unlawful command influence in the case after reviewing emails between a top Pentagon lawyer and prosecutors. Pohl then began discussing with lawyers whether to drop charges against Brig. Gen. Jeffrey A. Sinclair or proceed with the case.

The latest twist in the case comes at a time when the Pentagon and Congress are grappling with the problem of sexual assaults within the military ranks.

After lawyers for Sinclair presented the new evidence Monday morning, Pohl dismissed the jury for the rest of the day. Pohl then heard arguments and testimony about emails from December between the prosecutors and the Pentagon lawyer regarding a potential plea deal that was ultimately rejected.

It is unlawful in the military justice system for senior commanders outside the chain of command to interfere in prosecutorial decisions.

A female captain with whom the married general admits having a three-year affair says he twice force her to perform oral sex while they were stationed in Afghanistan in 2011. Sinclair is believed to be the highest ranking U.S. military officer to ever face trial for sexual assault.

In a December 16 email, the deputy staff judge advocate at Fort Bragg, Lt. Col. James Bagwell, corresponded with Brig. Gen. Paul Wilson, the assistant judge advocate general for military and operational law based in Washington.

At the time, Bagwell was advising Fort Bragg’s top commander on whether to accept an offer from Sinclair to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges.

In the email, Bagwell asked Wilson for his opinion about the plea offer. Bagwell testified Monday that he later spoke with Wilson by phone. Wilson was previously stationed at Bragg and Bagwell described him as mentor.

“We very briefly discussed our personal opinions on the case,” Bagwell said. “He gave me his opinion.”

However, Bagwell testified that Wilson, a superior officer, never directed him on what he should do.

Lt. Gen. James Anderson, as the commander of the base, made the final decision to reject the plea offer. Testifying from Afghanistan by telephone, Anderson said the only thing he weighed to make up his mind was the opposition of Sinclair’s primary accuser to the deal.

Last week, Pohl ruled against a defense motion alleging improper command influence after pressing Sinclair’s lawyers to provide any evidence such interference took place.

As part of their trial preparations, the defense had repeatedly asked to review emails sent or received by lawyers and commanders involved with the case. Prosecutors had opposed handing over the emails.

But on Saturday, prosecutors did hand over the emails now at issue, saying they had just received them in recent days. By law, prosecutors are required to hand over any evidence that might be helpful to the defense.

Richard Scheff, the general’s lead defense lawyer, told the judge Monday that the Army had been stonewalling him for months.

“Every time we asked for these, the government has said we were going on a fishing expedition,” Scheff said. “And each time, we catch fish.”

Pohl appeared frustrated with prosecutors, peppering them on why they had failed to hand over the emails prior to last week’s hearing on the issue.

“I am telling them they had to show me something and (the government) had these emails in their possession,” Pohl told the lead prosecutor. “How do we know what else is out there at this point?”

In a December letter sent by her attorney, the female captain at the center of the case opposed the proposed plea agreement. The Associated Press generally does not name those who say they were sexually assaulted.

Writing on behalf of her client, Capt. Cassie L. Fowler suggested the proposed 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.

Pohl has previously expressed concern that Fowler’s letter improperly tied whether to accept Sinclair’s plea to the political climate surrounding the case, rather than the strength of the evidence against the general.

Though prosecutors deny any consideration was given to Fowler’s comments about the potential political fallout of dismissing the sexual assault charges, the emails turned over to the defense Saturday show they did discuss

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