The biggest story is the court-martial of Army General Jeffrey Sinclair (click here for prior coverage). Here are the highlights:

The New York Times has this overview of the case and the climate on Capitol Hill.

The Los Angeles Times has this story about the departure of Lt. Col. Helixon from the case. Additional details are in this AP story. And this Reuters story also discusses Lt. Col. Helixon’s departure, noting that he “disclosed serious personal health and family problems.” As such, I’ll likely not mention the subject again, and I wish the Lt. Col. good luck and a speedy recovery.

The Government will be permitted to show the members some of the pornography found on the General’s computer in Afghanistan, but it will not be allowed to argue that the pornography is evidence of intent or a plan to commit forcible sodomy. It also won’t be permitted to show it during the opening statements (apparently, the prosecutors wanted to show 50 videos and 125 images during the opening…). Story here and additional coverage here.

Opening statements are scheduled for 9 a.m. on Thursday.

In other news, the court-martial of Army Staff Sergeant Solis is over. The case hasn’t been part of our coverage, but the accused faced allegations that he assaulted one of his ex-wives and raped the other (yes, two ex-wives). This local media report has details of the trial, including commentary that, “Perhaps the day’s most emotional testimony of all came from Solis’ second wife, who was brutally raped by him seven months before they were married” (emphasis added). According to this report, SSG Solis was convicted of just one specification of assault consummated by a battery, and sentenced to reduction to E-5 and forfeiture of $1,500 pay per month for two months.

Reader “T” alerted me to this story about a junior Airman who claims she was raped while working as an undercover informant for the Air Force Office of Special Investigations. Notably, the Air Force hasn’t been shy about using junior personnel as informants, as revealed by this Colorado Springs Gazette report and this Air Force Times story (both mentioned by Mike last December in this post).

Finally, the President has nominated Colonel John Ewers to be the next Staff Judge Advocate to the Commandant of the Marine Corps.

15 Responses to “Military Justice News for Wednesday, March 5, 2014”

  1. DB Cooper says:

    The AP article in USA Today has some additional details that seem to validate some of the defense’s claims.  Specifically, the AP article quotes testimony from Brigadier General Paul Wilson, the Assistant Judge Advocate General for Military Law and Operations, during a recent hearing.  BG Wilson testified that he encountered LTC Helixon in a room at the Washington DC Ritz Carlton where Helixon appeared drunk and suicidal.  LTC Helixon told BG Wilson that he “was convinced the accuser had lied about crucial evidence but thought the case against Brig. Gen. Jeffrey A. Sinclair was of such strategic importance to the military’s crackdown on sexual assaults, he felt pressured to pursue it.”  BG Wilson then took LTC Helixon to an emergency room for a “mental health evaluation.” 
    So while I too wish LTC Helixon good luck and a speedy recovery, there is more to this than “personal health and family problems.”  And I commend LTC Helixon for stepping down over what was clearly a professional and ethical dilemma for him.  I’ve seen lots of leaders give lip service over the years to “taking the hard right over the easy wrong.”  But LTC Helixon really did it.        

  2. RKincaid3 says:

    The Sinclai case, probably more so than any other, represents how screwed up the MJ process is and how unrelated to “justice” it is.  It is a shining example of non-lawyers pushing specific charges in a case despite questionable evidence as to those charges, facts be damned, and for no better reasons than thy can and MUST because of politics.  On the other end, every MJ practitioner has watched “commanders” do the opposite as some in Sinclair by overlooking service member misconduct for different, but no less political,considerations.  
    Both are examples of “Commanders” failing to lead despite their much vaunted “specially” selected abilities to do just that.  
    in a true justice system, a prosecutor would have the authority to press only those charges supported by the evidence.  Also, in a true justice system, the prosecutor who dismissed unsupportable charges would not then be taken to a hospital and have his mental health challenged.  That is the oldest play in the military’s disciplinary handbook–have someone not towing the line but who is also not a discipline problem?   Send them to a shrink for mental health treatment. Over and over again, the same accusations have been made in the military against any LEADER who leads in a different direction than the headlong rush towards conformity. They have even been made against General Ansell in the years since his heroic Crowder/Ansell debates in the early 20th Century, desire the fact the passage of time has proven him right and Crowder wrong. 
    LTC Helixon deserves better than this system.  Victims and accused deserve better. All service members do. 
    But Congress, so wrapped up in their own petty politics is oblivious to the damage they and their insipid “justice” system have wrought and inflicted, that they are oblivious to the fact that everyday service members are getting abused in plain sight by the system itself. 
    And we wonder why morale sucks.  

  3. Lieber says:

    RKinkaid3: you’re full of shit on this one.  back the f___ up.  there are many problems with this system but no one forced LTC Helixon off the case.  His family issues are real and many of us knew about them but obviously weren’t going to say anything.  It’s now just become very public.
    k_fischer: as you surmised, some of the porn was stuff Sinclair really didn’t want the panel to see.  thus the naked pleas today…which I anticipated after the MJ’s ruling yesterday…

  4. k fischer says:

    As I read your post, I thought that it was one of your typical posts, which is essentially “The military justice system sucks for both victims and the accused” with no proffer of the details of a better system that would better serve a military that is often times OCONUS, the accused, and the victim.  
    HOWEVER, you did raise a point that I did not consider regarding what you deem ‘the oldest play in the military’s disciplinary playbook.’  Now, I am not saying that there is some nefarious plot to accuse people of mental health issues when they swim against the tide.  However, in two recent highly publicized cases, two military attorneys involved in cases where the UCI card is thrown have been accused of having mental health issues, The Wierick and LTC Helixon.  I noticed in one of the articles that BG Wilson testified that the psych ward at a military health facility would not admit LTC Helixon.  This is interesting.  I don’t know if there is any correlation, but it is certainly something to consider.

  5. RKincaid3 says:

    Well, so much for being officers and a gentlemen engaging in a lively and factual public debate. Kindly cease and desist with the childish and unprofessional, colorful language, whatever your rank and/or status.
    The fact remains that ALL of my points are NOT off the mark and I am not “full” of it on this one.  Everyone has personal problems.  It is just that most of us are fortunate enough to NOT be in positions where the system can publically exploit it for its own political purposes.
    Whatever LTC Helixon’s problems are or aren’t, real or not, HE DOES NOT DESERVE THE WAY THIS HAS BEEN HANDLED.  Neither does an accused or a victim.  But how the Sinclair case has been handled IS the way things are handled under our system.  Notice the news lately?
    Historical facts, and court records, and Art 15 records and government document records are the facts. History has seen this same fact pattern play out over and over again.  And you, ostensibly an active duty MJ practitioner, maybe even a leader in the JAGC or other career field, need to step back and quit defending the indefensible and start leading.
    Start being the “honest broker” that the JAGC tells us as young Captains to be, and which we often seem to forget as we pursue our personal quest for promotion and approval from above.  Quit stifling dissent with over-the-top, unecessary, colorful language when neither appropriate or necessary.
    You have chosen the name “Lieber” for use on this forum.  You will recall that the real Lieber STOOD UP, publically putting his name behind very politically (and practically) unpopular PRINCIPLES—that wars should have rules at a time when war was generally a free for all of man against man at man’s most brutal and basest nature.  That was leadership.
    Aside from leading this forum in the use profanity so as to stifle debate in the name of conformity, are you going to stand when your fellow service members need LEADERSHIP in this crucial area?  Or will you continue to protect the status quo instead of actually challenging it to be better than it is?
    If you wish to live up to your name sake, Lieber, STAND UP, NOW, AND LEAD in the face of adversity.  PLEASE!

  6. RKincaid3 says:

    Thanks, KFischer, for the civil debate.  I do have ideas.  I have been putting pen to paper to outline them, as promised to you a week or so ago.  I will push them out, but remember, this problem requires much more than one person’s ideas.  As I have stated previsouly, it requires a COX COMMISSION ON STEROIDS.  The best and brightest need to get together and put together a COMPREHENSIVE system in place.  No more peice-meal fixes and tinkering.

  7. k fischer says:

    I saw.  I think that’s a smart move by team Sinclair and Mr. Scheff.  If the alcohol charge was still on the table with just the sexual assaults, then I could see a not guilty on all the charges because there would be a good shot to get a valid not guilty or jury nullification on it.  But, those videos, like it or not, would bleed into the forcible sodomy charge if they were bad enough.
    As for my comments regarding the Weirick and LTC Helixon, I just laid out the facts and said there was pause for consideration, so please don’t come at me, ‘Bro…or is it ‘Sis?  I’ve suspected ‘Sis for some time now.

  8. dyskolos says:

    RKincaid3 on the topic of ‘justice.’
    The decision to pursue a particular course of action in a military justice case involves a number of factors.  Military disciple within the organization seems paramount in my mind. Deterrence, however tattered that concept has become recently, was a significant goal when I was on active duty.  I’ll own up that I don’t know all the facts in the Sinclair case, but I do know he is a flag officer, a commander, the O-3 was his subordinate, and something about a panda.  In general for Soldiers, their parents, and the American public at large, I don’t think this conduct is the epitome of military leadership that inspires confidence. To the contrary, if it were an NJP GOMOR and a retirement as an O-6, then it would be viewed cynically.  [I know, there have been many such examples of this expedient course of action.]  But the election to choose the forum of discipline is left to the convening authority, and I believe the determination that the case could not adequately be addressed by other methods is within his sound discretion. 

  9. k fischer says:

    Then, it sounds like you are a little more Gillibrand and a lot less McCaskill.  Like the bane of most social movements, the feminists keep looking for a new change to lobby for to justify their existence, and imho just don’t knowwhen to quit.  I think the additions of the SVP and SVC were smart and could have salvaged a Command driven UCMJ.  However, I think that groups like SWAN have a powerful lobby and the lobby has resulted in Congress injecting bias into the UCMJ, so much that taking the Commanders out of it is now the only option.  
    I find it ironic that in vilifying the Command in an attempt to place control of the UCMJ into the hands of Judge Advocates, SWAN has taken away one of the biggest advantages that a prosecutor has at trial with the panel members who are selected by the CG: the CG sent the charges to us after an Article 32 officer heard the charges.  I think that if Senator Gillibrand’s bill is passed and becomes the law of the land, then it will result at trial in a net loss for accusers, and a net gain for criminal defense attorneys who specialize in the defense of Servicemembers accused of sex crimes.   
    On the flip side, I think it will result in a net gain with regards to real victims feeling the confidence to report, if as, according to Gillibrand they have no confidence whatsoever because it is a command driven system.  If that is the case, then I understand that point and agree with changing the system for that reason.  However, I don’t buy the “we need to change this system to stop sexual assault.”    

  10. stewie says:

    To quote a famous newsman: “That escalated quickly!”
    While I agree the foul language was unnecessary, the sentimentality behind it I also agree with.  Most of us do not know LTC Helixon very well (if at all) or BG Wilson, or the current SJA, or any of the players, or the details and background of how things went down.  So speculating about who deserves better is a little premature RK3 unless you have intimate details/knowledge.
    I will admit that it at least feels like the government could have gotten to the same result without perhaps not airing the entirety of LTC Helixon’s alleged dirty laundry in public simply because, as the MJ stated, it all was simply “his opinion” which was not relevant at all to UCI. I’d guess whatever morale issues we have stems more from budget/bodies being cut, promotion rates being down, etc then from the state of the CJ system.
    I have a hard time believing that all parties in this situation are doing what they, from their POV, thinks is right, whether that’s LTC Helixon or BG Wilson or the new prosecutor (or defense counsel, etc).  So I bristle a little bit when I see links being made between two isolated and unrelated incidents kf. I know you are making them very thin links, but links nonetheless.

  11. RKincaid3 says:

    k fischer: The changes I propose will not stop sexual assault.  But those that do happen will be disposed of via a justice system, not a disciplinary system that is not equipped to or capable of meting out justice.  I personally am in favor of most of Gillibrand’s proposal simply because it does attempt to draw a line between disciplinary matters and justice matters. 

  12. RKincaid3 says:

    Stewie: I concur with much of what you stated simply because you expose the premise of my point:  everyone has a POV…and in purusing our respective POVs, the interests of justice are lost because we have a POV-specific disciplinary system.  A justice system would balance the competing POVs even though 50% of the people walking out of the courtroom are unhappy with the result, from their POV.  A justice system has a POV that considers, but does not serve, all the competing POVs.

  13. RKincaid3 says:

    dyskolos:  Thanks for the inquiry.  I concur that some of the allegations against Sinclair are both disciplinary and criminal in nature.  In a properly established justice system, the two issues would not be part of the same trial.  Sinclair’s commander can and should adjudicate the disciplinary issues at his level while his crimes should be adjudicated through the courts.
    The historical problem with the UCMJ is that if conflates the issues of discipline and justice.  Simply stated, a commander does not need to impose a federal conviction upon a service member in order to establish and maintain discipline.  As good as a commander might be on the battlefield, they are not trained to do the lawyers job in the courtroom.   And lawyers are not trained to perform the commander’s job on the field.  Commander’s make decisions for reasons that have nothing to do with a just outcome, so long as the outcome helps him accomplish his combat mission.  Case in point:  how many JAGs have advised commander’s in FLIPLs that a Soldier is not financially liable due to the legal principle of supervening cause only to have that commander find liability anyway simply because the commander’s mind was made up that the Soldier should have known better?  This example is far too common.  And there are too many others.
    I concur that discipline is an indispensible part of an effective military.  The military is worthless without it.  That is beyond dispute.  Discipline instills strict adherence to accomplishing the mission set by leaders.  That is well within the necessary authority for a commander.  And mission effectiveness on the battlefield requires a single-minded focus on mission accomplishment, to the exclusion of all other considerations.  This includes disregarding the interests of both an accused and a victim.
                Justice, on the other hand, requires a single-minded focus on the judicial process, without regard to the result.  That mission necessarily balances the interests of society (whether a military or civilian society) with the competing interests of the accused and the victim.  None of those interests are worth more or less than the others.  Therein lays the fundamental difference between justice and discipline.  The former is process oriented and the latter is results oriented.
    A separate military prosecution chain (not civilian prosecutors) that is qualified to address criminal activity justly will be able to adequately implement “justice” while still allowing the commander to maintain a “disciplinary” system over conduct that is truly a minor disciplinary matter.  This is not a debate about removing from commanders the ability to impose discipline.  It is a debate about keeping commander’s within their lanes of specialized expertise and implementing a justice system that is puts justice matters into the hands of those who are trained and qualified to handle them.
    Obviously, a perfect system cannot be designed if human beings are involved.  Where there is human activity, there is corruption and misdirection and ill-motive–and competing interests are lost.  But the wise society builds a system that doesn’t ignore the human frailty factor and instead builds a system that anticipates the inevitable failure of the human factor so that the system can work despite the human failure.  The founders did it with the checks and balances built into the federal government.  They didn’t pretend that history wouldn’t be repeated as long as humans gain power, control and authority.
    Every Soldier, Sailor, Airman and Marine can become an accused or a victim.  And in either case, they deserve much better than they receive under this system.  I submit that it is beyond debate that we can do better.  The question is not how, as we know the way ahead.  The question is simply: when we are strong enough to actually make the decision to be better than we have been in the past.
    Just my opinion.

  14. k fischer says:

    You’re correct.  I guess I’m a good example of an attorney who after filing a UCI motion has not been accused of having mental health issues.  I’ve filed 3 UCI motions and I’ve never been asked to go to the 4th floor.  I’m perfectly sane. 

  15. stewie says:

    While I recognize your sarcasm, I don’t understand the point of it.  LTC Helixon didn’t file a UCI motion, and he didn’t really allege anyone acted or is acting inappropriately.  I don’t know the truth of what is claimed went on in that hotel room, I wasn’t there, and I don’t know any of the parties remotely well enough to begin to speculate except by general reputations.  I assume though that no one perjured themselves which suggest that at least one of the parties perceived (rightly or wrongly) that the other was in distress over whether to continue on the case or not.  In short, it seemed like a personal moral dilemma not necessarily a professional/ethical dilemma.
    If your point is that perhaps we could have reached the current end state with less public damage to LTC Helixon’s reputation, I would tend to agree, while acknowledging I know bupkis about anything that happened.