From the Fayetteville Observer (here):

Sinclair’s lawyers this morning made an issue over 16,000 emails that military investigators and prosecutors obtained. The defense says the emails, sent through Sinclair’s military account, are confidential under attorney-client privilege and were marked as such in the subject line. The lawyers asked the hearing officer at Fort Bragg to dismiss the charges, or remove the prosecutors and investigators from the case.

The hearing officer called a recess while he consulted with legal advisors over the matter. The prosecutors said they needed time to prepare for arguments over the issue of the emails. The hearing will resume at 1 p.m.

Meanwhile, details of the charges read this morning accuse Sinclair of sexual misconduct with two female captains, a major and another woman at Fort Bragg, at an Army base in Germany, in Iraq and in Afghanistan. The encounters were in a parking lot, in his office in Afghanistan with the door open, on an exposed balcony at a hotel and on a plane, where he allegedly groped a woman, the charges say. At least two of the women were members of his staff, the charges say.

Sinclair, who is married, had the women send him sexually explicit photos and videos of them, prosecutors said. He made frequent derogatory comments toward women, they said. When confronted about those comments, Sinclair is accused of replying, “I’m a general, I’ll do whatever the (expletive) I want.”

Sinclair is accused of lying about travel reimbursements when he made two trips, to Arizona and to Texas. He reported they were to observe training and to attend a conference, but both were personal trips, the government says. . . .

The list of charges include wrongful sexual conduct, attempted violation of an order, wrongfully engaging in inappropriate relationships, misuse of a government travel charge card, possessing alcohol and pornography while deployed, maltreatment of subordinates and fraud.

H/t Lieber

15 Responses to “BGEN Sinclair Charges Unveiled and Alleged A/C Emails at Issue”

  1. Lieber says:

    I bet a whole new prosecution team comes on board:

    http://fayobserver.com/articles/2012/11/05/1215407?sac=fo.military

  2. Mike "No Man" Navarre says:

    Whatever the answer is to the question of what to do with potentially A/C privileged material seized from an accused, I can’t imagine this was the right answer:

    The hearing officer, Maj. Gen. Perry L. Wiggins of Fort Hood, Texas, consulted with legal advisors over the matter. Testimony began this afternoon with the Army Criminal Investigation Command agent who was questioned over the emails and her investigation.

    A third-party investigator or lawyer was supposed to review the subpoenaed emails and remove those that were protected, testified the agent, who was the special agent in charge of the field office in Kandahar, Afghanistan. But no one was available to do that, she said.

    The agent said she went through to the emails and tried her best to pull out relevant ones. The defense is offering evidence that all of the emails were made available to prosecutors, including those in which Sinclair discussed defense strategies with his lawyers.

    Under defense questioning, the CID agent said she didn’t have enough resources to conduct a proper investigation of Sinclair. She said she asked for help one time and wasn’t able to get it.

    I won’t be taking Lieber up on his offer

  3. Michael Keyes says:

    I’m curious, how are 16,000 emails sent on a government computer not subject to random scrutiny and how is anything sent on a government computer considered private unless it involves national security?  Isn’t this why presidents have private accounts to discuss stuff they don’t want found?

    I understand the A/C relationship, but this BG seems to have not made the obvious decision to keep prying eyes out of his business with his lawyer (or anyone else.)

  4. Lieber says:

    MK,

    In a deployed environment his official computer may well have been his only means of communication with TDS.  He probably could have set up a Gmail account (though such sites are sometimes blocked in theater) I suppose.

  5. DB Cooper says:

    MK,

    Under your logic, all internal e-mails between the trial counsel regarding this case are not covered by work-product privilege.  Nor are any notes the trial counsel happen to store on their government computers.  I look forward to the government handing those over, as they are certainly relevant within the meaning of MRE 401.

  6. Dew_Process says:

    There’s also a viable IAC issue – for at least 4 years, when the DoD policy (and computer banners changed), the criminal defense community has attempted to deal with this issue both within the individual services and with the DoD/GC’s office.  The “user agreement” if anyone looks at it, now provides “The user consents to interception/capture and seizure of ALL communications and data for any authorized purpose
    (including personnel misconduct, law enforcement, or counterintelligence investigation).”  

    How TDS or the other defense shops can operate using DoD servers / computers is complicated.  If the case is referred, you get a Protective Order from the MJ.  If not, you go to plan B.  Anyone with this issue should begin with reviewing ABA Formal Ethics Opinion 99-413 and check their State Bar’s requirements.

  7. Michael Lowrey says:

    And the Associated Press article describing the first day of the Article 32 session: http://www.rockymounttelegram.com/news/ncwire/hearing-begins-army-general-accused-sex-crimes-1333999
    Highlight, which comes at the end of news story:
     

    The defense is asking the officer conducting the hearing, Maj. Gen. Perry L. Wiggins, to either require all new prosecutors to be assigned or the case thrown out.
    “The investigators were tainted, and they tainted the prosecutors,” Thompson told Wiggins. “They bungled the investigation, and if you leave them in place, they will bungle the prosecution as well.”
    A visibly flustered lead prosecutor, Lt. Col. William Helixon, was put in the uncomfortable position of calling two of his fellow prosecutors to the witness stand to deny they had read the privileged e-mails. The defense learned of the apparent violation by spotting the e-mails among 16,000 pages of evidence turned over by the prosecution earlier this month.
    Wiggins eventually elected to proceed with the Article 32 hearing, after which he will make a recommendation up the chain of command about whether to court martial Sinclair. The hearing was set to resume Tuesday morning with the female captain taking the witness stand.

  8. rob klant says:

    But, DP, the standard banner notice also provides that use does not constitute consent searching/monitoring of the content of privileged communications, or work product, related to personal representation or services by attorneys, psychotherapists, or clergy, and their assistants.

    Personally, I think defense counsel and their clients should be entitled to rely on the government’s representations.  

    Just to be safe, though, use the method described at the link to password protect any communications as separate attachments (I’ve heard that using a 15-character password with the same  mix of characters recommended gives the same security strength as encryption, except the government doesn’t hold the key as it does with a CAC card).

    http://www.tricare.mil/tma/privacy/downloads/TMA_Guidelines_fo_%20Sensitive_Info_in_E-mail_25June2008.pdf

    I wonder too if government portals such as SAFE might not give better protection than ordinary email.  See e.g.  http://www.doncio.navy.mil/ContentView.aspx?ID=4098.   At least, I’d think, the contents wouldn’t be within the immediate reach of the average command’s IT department.

  9. Just Sayin' says:

    MK,
    Last I checked the ethical obligations of prosecutors as defined by the state ethics canons trump a computerized banner warning.  also, there’s that whole pesky 6th amendment thing.
     
    Were I chief of TDS, I would fight fire with fire.  Order all defense counsel with remote clients to cease all e-mail communication or use of government phones when contacting clients, and then move for continuances until they are able to physically meet with their client and prepare in person.

  10. WWJD says:

    While I agree that a disclaimer should be included, I am not quit sure it will rise to the level of IAC.
     
    Also, for the same reasons why the charges will not be dismissed, these mistakes are easily cured.

  11. Bill C says:

    As soon as the TC saw the first one of these e-mails, they should have contacted the DC and told them.  Then they should have arranged for the accused to have a separate e-mail account to contact his counsel.  Things like this, and delving into the personnel files of a judge, give the system a bad name.  But nothing will happen to the TC in either of these instances.

  12. Dew_Process says:

    @Just Sayin’ – COL Ted Dixon before he retired, ordered your exact “remedy” in a case arising out of Ft. Campbell, KY a couple of years back and have the IT folks provide a way for TDS, civilian co-counsel and client to communicate via email that did not get routed through government servers.  Strange how quickly that was accomplished.

    @RK – You’re correct, but that doesn’t resolve the issue.  It’s not the “use” that precipitates the problem, it’s the disclosure itself.  That implicates [AR 27-26 for Army folks], Rule 1.6(a)’s prohibition on revealing client information without the client’s consent [and is consistent with virtually all State Bar Rules].  The Commentary to this Rule makes it clear that the privilege belongs to the client within the A/C privilege, but that there is a further duty on counsel to preserve “confidential” information which is broader than the material covered by the A/C privilege.  The commentary also notes the following:

    “Control or access by others to automated data processing systems or equipment utilized by the lawyer also must be considered. Control or access by personnel who are not subject to the Rules, or supervised by those subject to these Rules, may lead to a violation of the confidentiality required by this Rule.”

    There is a body of case law that holds that where an employee [e.g.,  TDS attorney] is aware of the governmental, employer policy or regulations on computer usage that amounts to monitoring consent, that such vitiates any expectation of privacy and hence, protections.  See, e.g., U.S. v. Angevine, 281 F.3 1130 (10th Cir.), cert. denied 537 U.S. 845 (2002).   Thus, if there’s no expectation of privacy by using a DoD email system, how can a defense attorney use such to confidentially communicate with his/her clients absent encryption that the DoD can’t bust?

  13. Michael Keyes says:

    Thanks for the discussion.  For the record I am not an attorney but am interested in the issues of access and privacy.  It will be interesting to see how the judge decides.

  14. rob klant says:

    I’m with you on the second point.  I’ve never understood myself exactly what the DoD notice was trying to say with regards to privileges. 

    I think it’s a fair reading, though, that DoD is actually saying there is no reasonable expectation of privacy whatsoever in the system, even among those engaging in communications which would might otherwise be privileged.

    If that’s the case, then I think the rest of your argument also follows, i.e. if you’ve communicated under circumstances affording no expectation of privacy, then you’ve forfeited your right to claim a privilege and violated your ethical duties to boot.

    But, if there actually is no expectation of privacy, then how does consent or the lack thereof come into the equation at all, since it would seem wholly irrelevant.  

    I’d assume the government meant something by including the reference to privileges in the notice and I think it’s reasonable to think it was intended for the benefit of the parties engaged in the communication.  Still, I can understand the confusion and concern.

        

  15. Lieber says:

    you folks might need to read the articles more closely.

    1.  it appears the emails were the subject of a subpoena from a service provider of some sort.
    2.  in other words, likely from gmail or yahoo or somesuch.
    3.  it the above is the case, then the defendant may have been using the same personal email account to communicate with his alleged paramours as with his defense counsel (who doesn’t keep multiple email accounts?  I have like 6)