This AP report (see also this local media report) discusses the finding of the military judge in the Sinclair case of:

evidence of unlawful command influence in Fort Bragg officials’ decision to reject a plea deal before the trial. Under military code of justice, the decision was supposed to be decided solely based on evidence in the case — and not its broader political implications in a military grappling with sexual assault cases.

As a remedy the judge:

gave the defense team the choice of having a different commanding general and prosecutors consider the rejected plea deal. The defense has until Tuesday morning to decide whether to accept the offer or allow the trial to proceed.

I’m not sure how this is possible without first disqualifying the convening authority (and possibly the entire prosecution team, considering the reference to “a different commanding general and prosecutors“). And depending on the date that disqualification “ripened” (for lack of a better term), there may also be an improper referral.

Update: The AP story was updated and now reads “another chance to plea-bargain the case down with a different set of military officials” instead of “the choice of having a different commanding general and prosecutors consider the rejected plea deal.” You can read a cached version of the original story here (the change is in the third paragraph).

22 Responses to “Unlawful political(?) influence in the Sinclair trial”

  1. stewie says:

    Agreed this is a baby-splitting solution that may not do what Judge Pohl wants to do, which is I assume to give a little to each side and hope everyone comes out happy and the UCI issue is solved.

  2. Lieber says:

    I’m assuming that the impetus here is for the gov and defense to sit down today and reach a deal for the government to dismiss the 120s and trial to move forward tomorrow on everything else.  If not, the government bench of O-5 prosecutors is getting awfully thin.

  3. k fischer says:

    Did you notice they changed “Commanding General and prosecutors” to “military officials?”

  4. Javert says:

    I’d be interested to hear why the Judge felt considering “press[ing] ahead with a trial to send a message about its determination to curb rape” to be UCI.  That would seem to be a legitimate general deterrence consideration.  

  5. Anon says:

    @javert.  It may be a legit consideration but the pt is the determination of such considerations stops at theGCMCA level and here interference from on high has clouded that determination.  It can said to be harmless because the prevention of UCI as the catalyst for the UCMJ
    On a different note, this seems to be a good case for a writ t caaf based on jag GO involvement thoughts?

  6. ArmyTC says:

    Article 62 appeal in 3…2…1…

  7. Anon says:

    There is no ground for a 62 appeal.  Nothing dismissed; no evidence excluded.

  8. Zachary D Spilman says:

    Anon says:
    There is no ground for a 62 appeal.  Nothing dismissed; no evidence excluded.

    Now since when has that stopped the Government from filing an appeal? See The NMCCA finds that Article 62 authorizes appeals of recesses. See also The Coast Guard CCA declines to create its own jurisdiction (and then the Government appeals)

  9. DCGoneGalt says:

    Comedic (funny because it’s true) point, Mr. Spilman.

  10. Anon says:

    Agreed, the CCA’s have a loose interpretation of 62, to say the least.  Honestly, nothing would suprise me tomorrow at 0900 except if the vic was actually crossed and the trial continued.

  11. Charlie Gittins says:

    I said this a couple of days ago on some thread, but the fact of the matter is that Judge Pohl is a Government-reliable judge who will do anything he can to save the Government from its incompetence.  He is trying to put the pressure on the defense to choose so he doesn’t have to make a reversible decision.  They should tell him to pound sand . . . there can be no real choice when it is clear that the political leaders are pushing down on the CA — whoever it may be.   I am not sure what I would do, but I think it would involve some voir dire or interrogation of the “military officials.”   This case has been an abortion from the start and Pohl’s legacy may end up being that he was the guy wearing the big red shoes and  red honking nose trying to save it for the Government clowns. 

  12. Ed says:

    One step the Judge might take is gagging the SVC. It might be unpopular by she appears to be out of control.

  13. Defense Hack says:

    When the SVPs started popping up, I got really worried. Now, it looks like the SVPs can help, even if it’s by accident. I imagine that version 2.0 of the training material is going to include some lessons learned, namely, “don’t step out of your lane when sending letters to the GCMCA.”

  14. Cap'n Crunch says:

    Were I counsel for Gen. Sinclair, I would move to withdraw the guilty pleas and insist they be withdrawn in light of the hidden evidence and what is clearly Brady material.  Then I’d file a motion for voir dire, all the way up the chain of command to the Secy of the Army, including the original CA and any replacement CA.  I’d move to dismiss the entirety of the proceedings for UCI.  Then I’d offer a RILO and see if the G wants to bite to avoid what is certain to be painful and ongoing litigation.

  15. Lieber says:

    What Brady material?

  16. Christian Deichert says:

    Cap’n — I assume you’re discussing the email traffic released to the defense this weekend.  I don’t see how this is Brady material, i.e., exculpatory or impeaching information or evidence that is material to the guilt or innocence or punishment of the accused.  I see how it arguably might provide a basis for improper referral or UCI motions, but how would this be even proper impeachment, let alone the rest?  What’s the theory of admission?  How would you establish foundation for opinion for truthfulness?

  17. Lieber says:

    CD said what I’m getting at.  that’s not Brady.

  18. k fischer says:

    But, certainly it is discoverable, and a violation not to disclose it in a case where there was clearly a UCI issue.  And, one of the problems that I have with the late disclosure and the prejudice it caused is that General Sinclair pleaded guilty probably on the charges that he agreed to plead guilty to in the offer.  So, he kind of lost the benefit of his bargain, didn’t he?  So, does the new Convening Authority reconsider the offer that was previously rejected, as if it were resubmitted fresh prior to him pleading guilty?  I mean, what’s the consideration here if his offer to plea is a guilty plea to all the charges that he pleaded guilty to?  
    Does anyone else see the problem here?  The Defense agrees to plead guilty to all the charges they pleaded guilty to before in the offer if the GCMCA agrees to dismiss the sexual offenses.  Government comes back and says, “Okay, but Sinclair has already done that and admitted under oath that he did it voluntarily.  So what else are you offering?”  Why should the Government do anything at this point?  What freaking good does allowing Sinclair to submit the plea agreement to a new convening authority do?  The MJ already accepted his guilty plea, right?  Sinclair can’t back out of it, can he?
    Let’s take all the politics out of this case.  Let’s say it was a drug distro to an undercover source who is a known perjurer and says one night Sinclair gave her a bump of coke.  The OTP would have been accepted.  
    The Government should appeal this ruling, just so we could get some clarity of what constitutes UCI.

  19. af_dc says:

    k fischer, I’d think in these circumstances and in light of his ruling, the MJ would allow Sinclair to withdraw his guilty plea.

  20. Christian Deichert says:

    KF – I concur; it may have been discoverable, perhaps even something that should have been disclosed independent of a discovery request, à la Article 34 pretrial advice.  I just don’t see how it could be considered Brady material.

  21. k fischer says:

    You’re right.  I don’t know what I was so worked up about.  I think that was a part of the mjs ruling.

  22. Is Brady "Relevant"? says:

    For admin actions part of 10 USC says ‘all relevant’ items are to be handed over. Certainly if it’s Brady-ish then it’s relevant. But, if it’s relevant to guilt / innocence / integrity of the process etc, such as indicators that UCI is in play, does that make it mandatory regardless of whether a specific discovery request was made? Seems the answer would be yes, that a parallel of the admin requirement of ‘all relevant’ would be there, but I’m drawing a blank on the mechanism, so I could be wrong.