Brigadier General Sinclair was sentenced to forfeit $5,000 pay per month for four months and to be reprimanded.

For a verbatim transcript of the proceedings to be required by Article 54 and Rule for Courts-Martial 1103(b)(2)(B), the sentence would have had to include confinement in excess of six months, forfeiture of pay greater than two-thirds pay per month, or other punishments in excess of what may be adjudged by a special court-martial (i.e., a dismissal or a very large fine). Any O-7 makes considerably more than $7,500 in pay per month, and a special court-martial can adjudge a reprimand.

Unless there’s an obscure Army regulation I don’t know about, there is no requirement for the Army to prepare a verbatim (and releasable under FOIA) transcript of any of the proceedings of the Sinclair court-martial.

18 Responses to “We may never see a verbatim transcript of the Sinclair trial”

  1. C Waite says:

    Arguably, the recordings are in a system of records right now, maintained according to Army regulations.One could ask for them to be preserved and disclosed under FOIA, perhaps?  I’ve seen crim law offices disclose under those circumstances…not sure how it would turn out here, though. 

  2. SgtDad says:

    That fact was contemplated by counsel in the plea negotiations, methinks.  I am given to understand some of the Gov’t wits were not exactly credible, so the Gov’t may have been willing to play along.
     
    Oh, what a tangled web we weave, …

  3. DCGoneGalt says:

    As a defense counsel who has tried to FOIA request the recorded proceedings of a politically motivated sexual assault show trial all I can say is good luck trying to get it.  Those in charge of making these decisions do not want records of these BS cases that never should have gone to court to see the light of day.

  4. Cloudesley Shovell says:

    http://www.caaflog.com/2011/03/10/widow-in-fragging-incident-wins-foia-ruling-for-court-martial-records/
     
    See Ed White’s comment to this CAAFlog post from a couple years ago.
     
    -CS

  5. A. Dreyfus says:

    I would like to gift wrap a copy of the verbatim record of the proceedings complete with a bow and send it to Congresswoman Jackie Speier. Of course, why should a pesky thing like truth get in the way of justice… or the crafting of wise and effective legislation? Of course I would like to send her (and each of the TJAGs) a number of such “care packages.” In this politically charged climate verbatim  transcripts of sex assault acquittals should be prepared alongside those of convictions… but then again, why should the truth matter?

  6. Charlie Gittins says:

    I have had the SJA order several sex assault acquittals transcribed.  I also had an SJA order an acquittal in a frat/adultery case transcribed — but the accused was an O-5 Commander CO, on the list for 0-6.  He could not be removed from the list based on the perjured evidence, and I am sure that the reviewers understood why the acquittal occurred.  It probably had something to do with the LT acccuser’s lie under oath about where she lived and who she lived with (a  superior in her chain of command who the CO was on to and about to relieve). Her invocation of her right to remain silent on cross examination at about 9 PM in the Norfolk courtroom was a high point.  The members acquitted the next day in less than an hour.  I really wanted a copy of that transcript.

  7. RKincaid3 says:

    Interesting ABA journal article on the fallout from the Sinclair and Tate CMs:
     
    http://www.abajournal.com/mobile/article/high-profile_military_sexual_assault_trials_stoke_controversy
     
    DCCG:  On the point of the ROTs not being available to undercut the legitimacy of BS CM prosecutions in the first place, I agree with you and I noted that same concern last year.  See the following link:
     
    http://www.caaflog.com/2013/06/20/sen-mccaskills-latest-well-informed-comments-on-sexual-assault/

  8. DCGoneGalt says:

    RK3:  I would have loved to sent one acquittal ROT to the base CC, the Chief of Staff and a few Congresscritters.  Alas, it was not to be.

  9. DCGoneGalt says:

    The ABA link cites to a Washington Post article where the complainant in the Naval Academy case bemoans that she has become a campus pariah.  “This is still my school, too”, she says.  Yes, unfortunately it still is her school.  However, if her baseless claim were treated the way it should have been by rational adults then she would have bounced from the Academy along with anyone she accused who compounded their poor, but non-criminal, behavior by lying to investigators.  As it stands, IMO she should consider herself lucky that she was able to take advantage of the political correctness lottery and steal a commission into the Navy. 

  10. RKincaid3 says:

    DCGG:  Hooah!  We recently had a case here at FLW where a Soldier was charged with rape even though there was a text message from the alleged victim that clearly stated that she made up the story to save her relationship with another man. There was an acquittal, unsurprisingly.  And guess what: there is now a record of an acquittal (another failure of the military to combat sexual assault) but no record to prove it was a case that never should have been tried.  So the system works again as designed:  to demonstrate failure for a political purpose.  And the Soldier is still titled by CID. A bunch of hooey, this hysteria is. But have only ourselves to blame. 

  11. stewie says:

    RK3, it’s a bit far to say that because there is one piece of evidence that a case shouldn’t be tried.  I suspect it’s not as clear-cut as you are making it.  (That’s different from saying a case being an acquittal is the right result).
     
    I would also say CID titling is something we both know TC can’t control.  In the past, I, and the TC I’ve supervised, have had more than one discussion with CID about a person who we felt shouldn’t be titled, only to be told to pound sand.  I think titling is something that a prosecutor (or COJ or SJA) should have the ability to reverse in some situations (like an acquittal or dismissal of charges).

  12. RKincaid3 says:

    Stewie:  Alas, I fear that you miss the entire point of the discussion I had with DCGG’s.  Yes, you correctly pointed out the obvious–there were many evidentiary problems with that prosecution, not just one piece of evidence.  The text message I described, however, was the most damning–it directly contradicted the primary point of the dispute: her consent, or lack thereof.  Regardless of what other evidence exists, when the issue of consent is so clearly resolved in favor of the accused, there should never have been a trial–except that, in my opinion, the current environment, governed as it is by politics and a lack of courage– affected the charging decision.
     
    The central points of DCGGs and my discussion was the fact that the current system allows or requires:
     
     1)  An ever-expanding range of non-sexual human conduct to fall within the scope of Art 120’s definition of sexual conduct; and
     
     2)  Criminal cases to be prosecuted for reasons that have nothing to do with the facts, but only the politics and/or career self-preservation by those charged with making the decision to prosecute; and
     
     
    3)  The reluctance of panel members, or, as in the case of the Sinclair trial, the MJ, to either convict or convict, but fail to impose a ROT-triggering punishment; and
     
     
    4)  CMs which do fail to trigger a certain level of punishment do not generate a record of trial, which prevents an after-the-fact, objective review of the basis for the trial in the first place.
     
     
    Those systemic flaws/factors then:
     
     
    1)  Lead to the propagation of ever greater political accusations that the military cannot and will not police itself; which
     
     
    2)  The military is loath to dispute for fear that those disputing it will be denied Congressional approval of future promotions; which
     
     
    3)  Then perpetuates the myth that the military has and continues to maintain a “culture of rape,” triggering even further congressional tinkering and the cycle, a death spiral of self-destruction of our military, continues.
     
     
    As for “titling,” I am very familiar with it from a prior JAG assignment where I dealt with it as part of my regular duties.  It used to be a legal decision based upon probable cause after a legal review by a trained and skilled lawyer and now it is an “operational decision” based upon “credible information” as determined exclusively by a junior, young, investigator who simply “believes” that the subject is less credible than the other witnesses/evidence, based, again, upon their subjective understanding of the new laws drafted by Congress which expand the definition of sex assault.  I know people who have been denied jobs because of those “operational decisions,” so there are in fact consequences of titling.  And don’t bother asking about the appeal process because it is effectively non-existent.  It requires one to appeal to the CG of the MCIO which made the initial decision (good luck with that).  I am personally only tracking successful appeals involving senior officers and/or those with political connections.  But my point in raising the titling issue is that it is very much related to the ridiculous way the Congress has drafted Art 120 and its amendments–and its failure to draft legislation preventing the DoD and its MCIOs to collect and maintain records based upon less than “probable cause.”
     
    And all of these developments are part and parcel of the lack of leadership, within both Congress and the military, in defending the majority of service members who are neither predators-in-training nor victims-in-waiting in a fictitious “military rape culture.”

  13. stewie says:

    I didn’t miss anything, I simply restricted my comment to one narrow point about one prosecution and the fact that I suspect there wasn’t a meeting where the folks involved said, hey, we got nothing, in fact, it’s clear the victim is lying, but hey, let’s go forward anyways.
     
    Titling was never in my history based on what you say…it was always a CID thing.  Opines are more of what I’ve seen you described where legal advice came into play.  I concur that titling has gotten more expansive since 07 and much more flimsy, and I agree CID rarely reverses it…but that is less a Congress or even a military thing, and more a CID thing…aka reason 134 why CID is a sub-par organization and always has been (IMO because of who makes up CID).

  14. Dew_Process says:

    @ RKincaid3 – just as an aside [the silence is deafening], the Executive Director of the ABA is LtGen Jack Rives (USAF)(ret), a former AF TJAG.  Ironically, from a historical perspective, it was the ABA who led the charge to create the UCMJ.

  15. RKincaid3 says:

    I simply restricted my comment to one narrow point about one prosecution and the fact that I suspect there wasn’t a meeting where the folks involved said, hey, we got nothing, in fact, it’s clear the victim is lying, but hey, let’s go forward anyways.
     

    So, you chose to respond by disputing point I did not make?  
     
    As for titling, it is not a CID thing.   It is a DoD MCIO thing–AFOSI, NCIS, DIA, etc., all do it.   And Congress could easily put a stop to it by statute if they cared for the rights of Americans more than they cared for their political agenda’s and cronyism.

  16. stewie says:

    “So the system works again as designed:  to demonstrate failure for a political purpose.”
    Nope, it was to respond to a point you did make, using a single case as a (flawed) example of what in my opinion is an inaccurate description.
     
    Congress can put a “stop” to just about anything military.  It doesn’t make it not a “CID thing.” I assume each service has their own policies that may or may not mirror each other.  I’m only focused on the Army. 

  17. JOJA says:

    Regarding titling complaints, consider addressing DoD IG: http://www.dtic.mil/whs/directives/corres/pdf/550507p.pdf