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This Week in Military Justice – March 11, 2018

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on March 21, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the CCA will hear oral argument in one case this week, on Wednesday, March 14, 2018, at 9:45 a.m.:

United States v. Sinclair, No. 20160267

Issues:
I. [WHETHER] TRIAL DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO FULLY ATTACK THE COMPLAINING WITNESS’S CREDIBILITY, AND WHEN THEY FAILED TO OBJECT TO PLAINLY INADMISSIBLE TESTIMONY AND ARGUMENT.

[II]. WAS TRIAL DEFENSE COUNSEL’S PRESENTENCING CASE INEFFECTIVE?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, March 15, 2018, at 10 a.m.:

United States v. Berger, NMCCA No. 201500024

Case summary:
A military judge sitting as a general court-martial convicted the appellant, pursuant to his plea, of violating a lawful general order by wrongfully possessing a synthetic cannabinoid compound. At the same court-martial, a panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of rape, one specification of sexual assault, one specification of aggravated sexual contact, two specifications of abusive sexual contact, and one specification of assault consummated by a battery. The members sentenced the appellant to 78 months’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the punitive discharge, ordered the sentence executed.

Although this court affirmed the findings and sentence, the Court of Appeals for the Armed Forces set aside our decision and remanded the case for reconsideration in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

Issue:
WHETHER THE EVIDENCE IN THIS CASE RENDERS THE MILITARY JUDGE’S INSTRUCTION ON THE PROPER USE OF PROPENSITY EVIDENCE, UNDER MILITARY RULE OF EVIDENCE 413, HARMLESS BEYOND A REASONABLE DOUBT, IN LIGHT OF UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016) AND ITS PROGENY, UNITED STATES V. GUARDADO, 77 M.J. 90 (C.A.A.F. 2017) AND UNITED STATES V. LUNA, 76 M.J. 477 (C.A.A.F. 2017).

Top Ten Military Justice Stories of 2015 – #1: Peak Crisis

Our #1 Military Justice Story of 2012 was the politicization of the military’s response to sexual assaults, and in that politicization the military sexual assault crisis was born. In the following years we saw a legislative rush to do something, and the Senate held hearings in March and June of 2013 and then a floor debate in 2014. Some of the subsequent changes to the UCMJ were our #1 Military Justice Story of 2013 and our #1 Military Justice Story of 2014.

But in 2015 things settled down.

Sure there were more changes to the UCMJ (enacted in the FY16 NDAA). But those changes are nothing compared to the fundamental transformations enacted in 2013 and 2014. Instead, 2015 was mainly a year of thinking about changes to the UCMJ.

For example, in February the Judicial Proceedings Panel released its initial report making eleven recommendations. Many of those recommendations focused on victims’ rights issues, but the Panel also recommended additional thinking about Article 120 and it formed a subcommittee to do just that. The Judicial Proceedings Panel Subcommittee released its report in December, recommending limited legislative changes (only 7 of the 17 issues warranted changes).

Additional thinking came from the Military Justice Review Group, which released its first report earlier this week. The report consists of a comprehensive evaluation of the UCMJ with detailed proposals to update some Articles, add others, and radically change a few.

These reports were the product of dozens of meetings (public and non-public) and thousands of hours of debate, deliberation, and review. Significantly, they lack the crisis mindset that seemed to permeate military justice policymaking in recent years past. They are deliberate proposals for comprehensive reform that were released to the public with plenty of time for real debate.

Our #1 Military Justice Story of 2015 is basically a non-story. The sky didn’t fall.

Hopefully it’s the beginning of a new trend.

Let’s not build a gallows just yet

I’m not bad. I’m just drawn that way.

Jessica RabbitWho Framed Roger Rabbit, Touchstone Pictures (1988).

There have been plenty of scandals in the military justice system over the past eighteen months. Examples include discovery issues (like BowserStellato, and Hudgins), judicial bias (like Kish, Williams, and Loiacono), prosecutorial misconduct (like Salyer, Frey, Hornback, and Porter), unlawful command influence by senior Government officials, the disintegration of high-profile cases (like Sinclair and Tate), and outright absurdity (like Sauk and the Pendleton search).

As we’ve written about these scandals, numerous (mostly pseudonymous) commenters have called for a heavy-handed response: criminal prosecution or professional discipline of the military attorneys involved.

I think such a response would be patently unfair.

Americans are right to expect that our military justice system will work better than it does. That is, as I wrote last year, a reason to take a hard look at the leadership within the military’s legal communities. After all, accountability is (supposed to be) king in military service:

Accountability. DoD employees are required to accept responsibility for their decisions and the resulting consequences. This includes avoiding even the appearance of impropriety because appearances affect public confidence. Accountability promotes careful, well thought-out decision-making and limits thoughtless action.

JER, § 12-401(d). But there is a big difference between a stupid legal argument and an unethical or criminal legal argument. Even the best lawyers make mistakes – sometimes big mistakes – and it is simply not unethical for an attorney to make a bad argument, or even to persist in that argument beyond the bounds of sensibility.

There’s no evidence that the many recent military justice scandals are the product of anything more than bad argument. They only look nefarious because they’re drawn that way. I’m willing to acknowledge some responsibility for that, as I’m doing much of the drawing through blunt analysis (often written with the benefit of hindsight). But so far as anything I’ve written might be interpreted as a call for suspension, disbarment, or criminal prosecution of military lawyers who make mistakes in the course of presenting a case, that’s not my intent.

We lawyers often use awfully strong language to describe a losing proposition:

When a decision is announced, even in very complicated cases where batteries of lawyers have bombarded each other and the judges for weeks with careful argument and high megaton precedent, the opinion solemnly says that the losing argument was without merit, or devoid of merit, or had no merit.

David Mellinkoff, The Conscience of a Lawyer 8 (West Publishing 1973) (emphasis in original). So maybe the calls for discipline are hyperbolic. They certainly should be. There are important lessons that all of us can learn from these mistakes. We should give the attorneys who made them a chance to learn as well.

Media reports on the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division

Thanks to reader tips, I can provide the following links to news reports of the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division.

WNCN (a North Carolina NBC affiliate) reports here that:

The court-martial of United States v. Major Erik J. Burris concluded after six days of proceedings. Burris, a former 82nd Airborne Division chief of justice, was found guilty two specifications of rape, forcible sodomy, four specifications of assault and disobeying an order from a superior commissioned officer.

The court-martial found Burris not guilty of four specifications of assault, two specifications of sexual assault, two specifications of forcible sodomy and two specifications of communicating a threat.

Burris pleaded not guilty to all charges.

He was sentenced to forfeiture of all pay and allowances, 20 years confinement and dismissal from the service.

The Fayetteville Observer (a daily newspaper) has this report, with no significant additional details. Additionally, there is this Associated Press report, also with no significant additional details.

I believe that our only prior coverage of this case was in this April 2014 post, where I noted this March 2014 report from Fox40 Sacremento that appears to include details from a press interview of Major Burris. There was also (briefly) some significant discussion of the results of the court-martial in this week’s TWIMJ post.

Thanks to all readers for the tips. I plan to update this post with any significant new developments.

Update 1: The official news release from the Fort Bragg Press Center is available here. It is identical to the WNCN report quoted above.

Update 2: Here is a rather unflattering (to the military justice system) Associated Press report about the case, with references to the Sinclair case.

Top Ten Military Justice Stories of 2014 – #2: High Profile Sexual Assault Cases

Our #2 story is really a continuation of our #1 story last year, and the media and congressional obsession with military sexual assault cases.  This year we saw continued attempts at tinkering with the military justice system to address issues, both perceived and real, with sexual assault in the military.  See here (debate on earlier Sen. McCaskill and Sen. Gillibrand bills), here (Sen. Gillibrand’s recent push to remove commander authority over certain offenses, including sexual assault), and here (changes in MilJus in the FY15 NDAA).

In related news, the Report of the Response Systems to Adult Sexual Assault Crimes Panel was released to Congress on June 27, 2014.  The report recommended modest changes to the MilJus and military training, but also contained a strong dissent recommending that “[c]ourt-martial convening authorities . . . should no longer control the decision to prosecute sexual assault cases in the military justice system.”

And recently, initial results of the RAND study of military sexual assault (here) had mixed results as they probably more accurately estimated potential sexual assaults in the military–but that of course meant that the data showed more official reports of sexual assault but a “27% decrease” (S&S reports here and here) in the estimated number of service members that were subject to unwanted sexual contact.  And while more official reports is one of the goals of this recent focus on sexual assault in the military, the seeming focus in the media and on the Hill is a numbers game that has very little to do with the real issue of preventing and prosecuting sexual assault, see our prior discourse on this subject here and here (to link a few).

But the actual cases also made headlines again this year.  Some of the sexual assault cases in the headlines came, yet again, from the Academies, including a high profile acquittal in Annapolis (here and here) and an investigation of student athletes in Colorado Springs (here).  And, again this year, commanders made headlines for handling–though mainly alleged mishandling (here and here (USAFA cases))–of sexual assault cases.  And judge advocate leadership on this issue even grabbed headlines, here, when a top sex crimes trial counsel was reprimanded after allegations that he “kissed and groped a female officer while attending a conference on sexual assault prevention.” But the biggest case was, obviously, the conclusion of the Brigadier General Jeffrey Sinclair case in March, here.  That case showed just how politicized the military justice system and the issue of sexual assault had become when the defense in the case successfully argued, and ultimately obtained a very favorable plea agreement and sentence as a result, that political influence had improperly swayed the convening authority to deny a plea agreement requested by the General, coverage here and here.

The Air Force CCA will hear a Government interlocutory appeal in the Wright case this week

Every Sunday at 1 p.m. we publish This Week in Military Justice, a summary of upcoming military justice events. While putting together today’s post I saw that tomorrow the Air Force CCA, sitting en banc, will hear oral argument in an interlocutory appeal:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges.

To the best of my knowledge (and someone please correct me if I’m wrong on this) this is a sexual assault case that was dismissed last year after Air Force Lieutenant General Craig Franklin determined that an Article 32 pretrial investigation did not reveal enough evidence to support trial by court-martial. (update: a few readers have confirmed that this is the same case). For those who don’t immediately recognize the name, Franklin was the convening authority in the Wilkerson case, our #5 Military Justice Story of 2013.

It seems we’ve covered the Wright case sporadically during the past year. In this post from February, I noted news reports about Franklin’s removal as convening authority and the convening of a second Article 32 investigation in the case. Then, in this post from March, I noted a news report that the case was referred for trial by the new convening authority. Finally, in this post from August, Mike noted the action that appears to be the subject of the Government appeal to the CCA:

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Unfortunately, that’s about all the detail I can find about the case that will be before the full AFCCA tomorrow (and my conclusion that it’s the same case is really only an educated guess). Considering the visibility of this case, the politically charged environment for sexual assault prosecutions at courts-martial, and the overriding need to avoid even the appearance of unlawful command influence, I’m saddened that we don’t have more information about this case.

However, I will note that the Government’s apparent refusal to produce correspondence for an in camera review reminds me of a recent case, also from the Air Force, where a similar attitude led to a dismissal with prejudice. In a published opinion issued last month in United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (discussed here), the Air Force CCA affirmed the judge’s ruling that dismissed with prejudice charges of rape, forcible sodomy, and assault, after the trial counsel refused to obey an order for an in camera review of the prosecution team’s witness interview notes.

Whether the Air Force seeks to use Wright to re-litigate the issues it lost in Bowser remains to be seen.

Military Justice News for Wednesday, April 2, 2014

In the old cases category, according to this Marine Corps Times report, Marine judge advocate Lieutenant Colonel Jasper, formerly the western regional trial counsel at Camp Pendleton, CA:

was cleared of misconduct at a Board of Inquiry following accusations that he slapped the rear end of a civilian female subordinate at a social event following legal training in Newport, R.I., last year. The panel also found no basis for allegations of substandard performance, which stemmed from accusations that Jasper treated certain junior officers in a demeaning way.

The report doesn’t say exactly, but I’ve heard that the board found no basis for separation. However, the report does include these noble words from LtCol Jasper’s defense counsel:

“Lt. Col. Jasper and his family, this has been a big stress on them. As much as they’re very, very happy that the process ended up working the way it did, it was difficult to go through that process,” Shelburne said. Despite that stress, Shelburne said, Jasper wanted to emphasize a desire that his case not create a rift within his field.

“No one wants this to reflect poorly on the judge advocate community or the Marine Corps for that matter,” he said.

Also in the old cases category, according to this report from the Anchorage Daily News, Petty Officer 3rd Class William Bisel was acquitted of all charges last week. Readers will remember the Bisel case from posts such as “The Coast Guard CCA declines to create its own jurisdiction (and then the Government appeals),” and “CAAF declines to create jurisdiction for the Coast Guard CCA.”

But in the new cases category, a commentor previously noted this local media story about allegations against Air Force Army Major Erik Burris (the Chief of Justice for the 82nd Airborne Division) that were made by his estranged wife. This case joins the allegations against another judge advocate: Army Lt. Col. Joseph Morse (who trains military prosecutors who handle sexual and physical abuse cases), whose case is discussed in this Washington Times report.

In other news, the Washington Post has this story on the SVC program, with an emphasis on the Sinclair case.

And finally, the Washington Times has a story titled: Political hunt for sex abusers puts military justice in peril, lawyers say. It begins:

The push from the commander in chief, generals and politicians to punish sexual offenders has become so relentless that it endangers the fairness of the military justice system, defense lawyers say.

They worry that a cacophony of public statements vouching for accusers and demanding justice can sway military judges and jurors who are trained to take lawful orders.

Military Justice News for Friday, March 28, 2014

In the wake of the debacle of the Sinclair court-martial, where the defense team used political concerns as a basis to successfully argue that the prosecution of the General was unfair, comes news that a half-century ago President Nixon may have used his office to sabotage a different high-profile court-martial prosecution. From this CBS News report:

The documents, mostly hand-written notes from Nixon’s meetings with his chief of staff H.R. “Bob” Haldeman, lead some historians to conclude that President Richard Nixon was behind the attempt to sabotage the My Lai trials and cover up what was becoming a public-relations disaster for his administration.

There’s an interesting murder trial wrapping up at Fort Stewart in Georgia. From this local media report:

Closing arguments are set to begin at 8 A.M. [Thursday] in a Fort Stewart Court-Martial. Private Isaac Aguigui is charged with murder in the death of his wife, Sgt. Deirdre Aguigui and their unborn child back in July of 2011. Officials say his plan was to fund his anti-government militia group with the insurance money from her death. This is a court-martial by a judge, not a jury panel, so we’re not sure how quickly a verdict could come.

The Coast Guard Academy will conduct an Article 32 investigation in a sexual assault case involving two cadets. There are few details of the case beyond those in this local media report.

And in further Coast Guard news, this local media report discusses the resumption of trial proceedings in United States v. Bisel:

“The court-martial was originally scheduled to begin on July 30, 2013 but was postponed due to procedural issues,” officials wrote. “Petty Officer Bisel is charged with two violations of Article 120 of the Uniform Code of Military Justice, which involve sexual assault.”

I think calling the delay in this case the product of procedural issues is taking liberties with the facts. As I discussed in this post back in February, the issue in Bisel was that the trial counsel tried, but failed, to allege the offense of forcible rape, instead charging only the lesser offense of aggravated sexual contact. Rather than prefer an additional charge, the Government appealed the military judge’s ruling. The Coast Guard Court of Criminal Appeals found that it lacked jurisdiction to consider the appeal because the military judge didn’t actually dismiss anything (the requirement for such an appeal). So, the Government asked the court to order the judge to dismiss the charge, thereby creating jurisdiction for its appeal.

The Coast Guard Court, and then CAAF, declined.

The lifelong consequences of a false allegation

After last week’s dramatic conclusions to the Sinclair and Tate cases, this story from Vanity Fair reminds us of the so-called “Duke Rape Case,” that arose from a stripper’s false allegation of rape against three members of the Duke lacrosse team. The Vanity Fair story talks about one team member who wasn’t charged with rape, but who is still fighting to get his life back on track.

And from the article:

For what was subsequently adjudged to be his many shortcomings in the handling of the Duke lacrosse case, Durham County District Attorney Mike Nifong was fired from office, was disbarred and was sentenced to one day in jail—the only person who spent any time in jail in connection with the case.

We may never see a verbatim transcript of the Sinclair trial

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.

Sinclair’s sentence

From the New York Times:

A military judge on Thursday morning reprimanded Army Brig. Gen. Jeffrey A. Sinclair for mistreating his mistress and other charges, but did not sentence him to any jail time and allowed him to remain in the military.

He was also ordered to forfeit $5,000 a month in pay for four months, but will be allowed to keep his pension and other benefits.

The decision by the judge at Fort Bragg, Col. James L. Pohl, was a sweeping victory for the defense, which had earlier agreed with prosecutors to cap any prison time he might face at 18 months.

New York Times article on how the Sinclair case “foundered”

Today’s New York Times has this article about the Sinclair case on the front page. Here’s a teaser:

During a Jan. 7 pretrial hearing, the sole witness to accuse Brig. Gen. Jeffrey A. Sinclair of forced sex — charges that could imprison him for life — took the stand at Fort Bragg to explain how she had only recently found an old iPhone that contained evidence of their three-year affair.

What might have seemed an innocuous discovery was, to General Sinclair’s civilian lawyers, a major opportunity: The witness, a 34-year-old captain, had kept text and other communications with General Sinclair on her computer and on another cellphone, some of which bolstered their contention that the relationship was consensual. They suspected this newly discovered phone contained similar messages.

As the lead defense lawyer, Richard L. Scheff, a former federal prosecutor, questioned the captain, she told a precise, detailed and unequivocal story about when and where she found the phone, and what she did with it.

But according to a forensic expert hired by the defense, her story was not true — the phone had been charged and restarted two weeks earlier than she had claimed. The military’s own experts reached a similar conclusion later.

After the hearing, Mr. Scheff said, he drew close to the chief military prosecutor, Lt. Col. William Helixon, and said, “You realize that you have a problem, right?” Colonel Helixon, Mr. Scheff said, agreed.

Thanks to reader “E” for the tip.

Sinclair trial delayed “indefinitely,” Senate passes the “Victims Protection Act,” and a once-dismissed Air Force case is referred for trial

According to this Reuters report, the Sinclair trial is delayed “indefinitely,” and the members are returning to their normal duties. The Associated Press adds that:

Attorneys for an Army general charged with sexual assault said Tuesday that they have decided to try to renegotiate a plea bargain with a new set of military officials after the judge determined that the case may have been improperly influenced by political concerns.

Judge Col. James Pohl sent the jury of generals back to their duty stations around the world after attorneys for Brig. Gen Jeffrey A. Sinclair announced their decision. The two sides will enter negotiations to try to resolve the case. A new general and legal advisers would have to be brought in to approve any new deal.

Additional coverage in this local media story and this LA Times story. But if you haven’t been following along over the past few days, you’re probably going to want to at least skim our recent coverage at this link.

The Senate passed Senator McCaskill’s “Victims Protection Act” (S. 1917) (link to Thomas) by a vote of 97-0. Coverage of the bill is available in our Military Justice Legislation category. The Hill reports here that the bill may not get consideration in the House outside of the normal NDAA process.

And finally, from this Air Force Times Report:

An airman whose sexual assault case was dismissed last September by former Third Air Force commander Lt. Gen. Craig Franklin will now face court-martial on rape charges.

Unlawful political(?) influence in the Sinclair trial – Part 2

News reports of today’s proceedings in the Sinclair case are trickling in, and they’re not pretty.

This ABC News report begins with the big picture:

Col. James Pohl granted a defense motion to reconsider “Unlawful Command Influence, and the role it played in the case. Pohl also ruled Army prosecutors failed to meet their burden of proof in denying UCI has influenced the trial

You’re thinking, “that’s bad.” Well this (from the same report) is worse:

“The only true, fair remedy is to reset that (the trial),” said lead prosecutor, Lt. Col. Robert Stelle, arguing for a mistrial.

The defense refused to request the mistrial.

I’ve failed to find a second source for this, so let’s not jump to conclusions. But what would cause the prosecution to ask for a mistrial in the most watched wild court-martial since the Lakin case? From this New York Times report:

The judge said he was particularly worried that a letter written by a lawyer for the main witness against General Sinclair, a captain who has accused him of forcing her to have sex and threatening her life, seemed to have unduly influenced General Anderson, the commanding general of Fort Bragg’s XVIII Airborne Corps. That letter, sent in December, said the captain was opposed to a plea deal, and it invoked the potential political consequences of an agreement on the Army’s efforts to combat sexual assault.

“Allowing the accused to characterize this relationship as a consensual affair would only strengthen the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army,” the accuser’s counsel wrote.

For all those prosecutors who look at the SVC program and think “the enemy of my enemy is my friend,” welcome to the real world.

This CNN report adds:

The e-mails that brought the proceedings to a halt Monday were described by defense attorney Richard Scheff as evidence showing that not only did senior Army officials believe that the accuser had a credibility issue, but also that commanders are making decision based on politics rather than justice.

In the January communication, Col. Michael Lacey, a staff judge advocate, writes Lt. Gen. Joseph Anderson about the accuser’s testimony regarding an iPhone she said she found December 9.

“The forensic analysis of the phone indicates she accessed the phone before 9 December, which brings her credibility into question. The Special Victims Prosecutor (SVP) is trying to reconcile the forensic analysis and her statement, but it is possible that she was not truthful,” Lacey wrote.

Now don’t start thinking that this was a sneaky lawyer trick by Mr. Scheff, withholding those awful emails from months ago just to spring them on the replacement trial counsel right after the alleged victim finishes her direct examination. It turns out that the emails were just disclosed by the prosecution over the past few days (according to the CNN report, and the NYT report, and the ABC News report, and this report from the AP, and this report from Reuters).

And here I thought the Government was good at collecting emails…

How could this get worse for the prosecution, you wonder? Well, BGEN Sinclair could move to withdraw his pleas of guilty… From the Reuters report:

The judge criticized the prosecution for waiting so long to produce the emails sought by the defense and for bringing them to light after the trial was underway.

But Pohl disagreed with defense lawyers that dismissing the sexual assault charges was the proper fix.

“What we have here is a wrong,” the judge said. “To dismiss the charges based on this wrong would not be appropriate.”

The judge gave Sinclair’s lawyers until Tuesday to decide whether they will submit another plea offer. A new convening authority would be chosen to consider the offer, though details were still being worked out about that selection process.

It was unclear if the trial would be put on hold should Sinclair renew his offer.

Defense attorneys would not discuss specifics of the prior offer. They have said in the past that Sinclair proposed to plead guilty to the military crimes of adultery and conduct unbecoming an officer if the sex assault charges were dropped.

The general pleaded guilty last week to lesser offenses that carry a maximum penalty of 15 years in prison and possible dismissal from the Army, but his attorneys said they could move to withdraw that plea after the events on Monday.

“We’re trying to figure out our strategy,” Scheff said.

Unlawful political(?) influence in the Sinclair trial

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).