CAAFlog » Court-Martial News

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.

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.

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.

Via Reuters, and the Associated Press, and the Washington Post, and the New York Times, Midshipman Joshua Tate of the Naval Academy was acquitted of sexual assault today, after a bench trial before a military judge.

However (and I’ve never seen this before), various sources confirm the AP’s report that:

In addition to the sexual assault charge, Tate also faced charges of lying to investigators. The judge did not decide those Thursday, however, returning the decision on what to do to the head of the Naval Academy.

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.

The New York Times reports:

The Army general prosecuted in the military’s most closely watched sexual assault case has agreed to plead guilty to lesser charges in exchange for the dismissal of accusations that he twice forced his longtime mistress into oral sex, threatened to kill her and her family, and performed consensual but “open and notorious sexual acts” with her in a parked car in Germany and on a hotel balcony in Tucson.

h/t D_P.

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.

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.

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.

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).

The court-martial of Army Brigadier General Sinclair resumes this morning. Last week the General pleaded guilty to offenses carrying a maximum of 15 years confinement. The Government then proceeded to trial with the most serious offenses, including multiple charges of sexual assaults. On Friday, the Government’s star witness – an unnamed female Army captain – began her testimony (significant details in this AP story), and cross-examination is expected to begin today. But first the Defense will reopen the issue of UCI, with a newly filed motion to dismiss the case:

Citing newly received Army emails, lawyers for Brig. Gen. Jeffrey A. Sinclair on Sunday night renewed their claims of Army command interference in the general’s sexual assault prosecution and asked the military judge to reconsider his refusal to drop the charges.

In a motion submitted the night before Sinclair’s accuser, an Army captain, is scheduled to be cross-examined at Ft. Bragg, N.C., defense lawyers referred to an email by a senior Army legal officer expressing concerns that the accuser lied on the stand at a preliminary hearing in January.

For those who haven’t been following closely, the alleged lie is over whether the captain accessed an old cell phone that contained evidence of the affair before she gave it to prosecutors. She claimed she didn’t, but forensics indicate that she did. However, there’s also this cringe-worthy bit:

The motion cites an email from an Army legal advisor to Lt. Gen. Anderson. The email refers to a letter the accuser’s special victim’s advocate wrote to Anderson. The advocate wrote that accepting Sinclair’s plea “would have an adverse affect on my client and the Army’s fight against sexual assault.’’

The legal advisor, Lt. Col. Jerrett Dunlap, wrote Dec. 18 that he had just met with Lt. Gen. Anderson, who agreed that the Army could not accept the plea offer. “The letter made [it] an easy decision,’’ Dunlap wrote.

In other news, the Army Times has this story about why you shouldn’t dodge colors, and if you do dodge colors why you shouldn’t brag about it on social media.

Reader “M” informed me of this Coast Guard news release about Coast Guard Commandant Admiral Bob Papp’s final State of the Coast Guard address:

“I have no greater responsibility than to ensure no Coast Guardsman ever has to experience the devastation of sexual assault at the hands of someone they thought was a shipmate,” he said. Papp also emphasized that if a victim believes their case is not being addressed, “they can email me. I’m in the global directory. It will be taken care of.”

Finally, reader “D” sent me this ABC News story about a former soldier facing a federal capital murder trial that is about to begin in Hawaii:

Talia Emoni Williams died in July 2005 after she was brought to a hospital unresponsive, vomiting and covered in bruises. A criminal complaint by federal investigators accuses her then-25-year-old father [Naeem Williams] of beating the child to discipline her for urinating on herself. Federal investigators wrote that military law enforcement agents found blood splatters in the walls of the family’s home at Wheeler Army Airfield from Talia being whipped with Williams’ belt.

Delilah Williams, Talia’s stepmother, was also charged with murder but pleaded guilty in a deal with prosecutors. She’s expected to be sentenced to 20 years in prison after she testifies against Williams at his trial, said her federal public defender, Alexander Silvert.

The Army agreed the case should be prosecuted in the civilian justice system so that the father and stepmother could appear in the same court.

The Senate is currently debating further reforms to the UCMJ, including the Gillibrand and McCaskill bills (discussed here). Live video on the Senate’s website here, and video of the day’s full session at C-SPAN here.

Brigadier General Sinclair is pleading guilty to nine specifications of three charges. According to this story:

Sinclair faces eight charges that enumerate 23 allegations of wrongdoing.

He proposes to plead guilty to three of the eight charges, admitting nine of the 23 allegations of wrongdoing, according to Scheff.

Sinclair’s planned guilty pleas include adultery with the captain, engaging in an inappropriate relationship with the captain, having inappropriate (but nonphysical) relationships with two other female Army officers, and possession of pornography in violation of Army orders in Afghanistan.

He also plans to plead guilty to conduct unbecoming an officer and a gentleman by engaging in sexually explicit communications with the two female officers that he had non-physical inappropriate relationships with – obtaining a nude photo of one – and of attempting to have an inappropriate relationship with a fourth female officer.

And Sinclair will plead guilty to impeding the investigation by deleting a nude photo of a civilian woman and deleting a personal email account, Scheff said.

Sinclair continues to plead not guilty to: committing forcible oral sodomy on his mistress, fondling her genitalia at times when she did not wish to have sexual contact with him, and by committing open and notorious sex acts in public places with the woman

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.

The Sinclair court-martial will begin on Tuesday at Fort Bragg, NC. The Fayetteville Observer has information for anyone planning to attend in this story.

Stars and Stripes profiles the Air Force SVC program in this story:

As described in a September evaluation report, SVC advocacy took many forms. SVCs persuaded commanders to allow transfers or forgo disciplining victims for violating fraternization rules, had retaliatory negative comments removed from performance reviews, had personnel who violated confidentiality rules removed from cases and retrieved clients’ cell phones from investigators who’d taken them for evidence and refused to return them. They secured clients transfers, even when commanders initially disapproved them and got protective orders.

Military Times continues coverage of the Sinclair UCI claims:

Fidell and others say the military should create independent commands to prosecute serious crimes rather than allowing courts-martial to be overseen by military commanders with no legal training.

“If anybody needed proof about the unreliability of the current command-centric system, here it is, this is the most glaring example,” Fidell said of the Sinclair case. “This is about an 18th-century [Uniform Code of Military Justice] charging system coming into collision with the 21st-century attorney’s code of professional conduct.”

And CBS reports as Senator Gillibrand tries to recapture the media’s attention:

To keep the issue alive, Gillibrand on Wednesday held a hearing on the relationship between military sexual assault, posttraumatic stress disorder and suicide.

I’ve seen some reports on a new motion by the Defense in the General Sinclair case seeking dismissal of all charges, apparently for UCI. From this ABC News story:

Lawyers for Brig. Gen. Jeffrey A. Sinclair filed a motion made public Tuesday asking Military Judge Col. James Pohl to throw out the case. Sinclair’s lawyers argued that testimony from the primary witness against him is unreliable and that top Pentagon brass improperly meddled in prosecutorial decisions.

And from this WRAL (local media) story:

“The (fact) that top military leaders outside the proper chain of command have injected themselves into these proceedings and the current political environment has instilled fear into any officer with authority in connection with a sexual assault prosecution, leads to no other conclusion than the decision-makers in this case fear the adverse personal and political consequences of taking the ethically, morally, and just action of dismissing the charges that rely upon the testimony of the Government’s discredited primary accuser,” the motion states. “Because no reasonable observer could possibly determine that such a proceeding was fair and just, this case should be dismissed as a result of unlawful command influence.”

And from this WTVD (local media) story:

It says on February 8, 2014, Helixon shared with lead defense attorney Richard Scheff that “he believed (the accuser) had lied, and that charges that relied solely on (the accuser) should be dismissed.”

The introduction to the motion describes how Helixon felt ethically bound to remove himself from the case after concluding there was reasonable doubt as to Sinclair’s guilt on the sexual misconduct charges. It goes on to say he was ignored or rejected by the Staff Judge Advocate and Convening Authority, and concludes that “the decision-makers in this case fear the adverse personal and political consequences of taking the ethically, morally and just action of dismissing the charges that rely on the Government’s discredited primary accuser.” It ends by saying the case should be dismissed as a result of “unlawful command influence.”

The motion also claims that Helixon has disclosed that General Ray Odierno, the Army’s top commander, is “aware that the charges relying on the captain’s testimony are likely to fail.”

During a February 9 phone conversation between Helixon and Scheff, the motion says Helixon “acknowledged Sinclair was not guilty of sexual misconduct charges, nor did he deserve to be dismissed from the Army, go to jail or register as a sex offender.” It says Helixon believed that “politics and outside pressures were driving forces pushing the case forward,” telling Scheff that former 18th Airborne Corps SJA, Brigadier General Paul Wilson, would be “in charge” of the prosecution.

Wilson is currently a Washington, D.C.-based Assistant JAG for Military and Operational Law. The motion goes on to say that Wilson told Helixon he “knew the accuser was a liar, that she had lied since the beginning, and that she’d repeatedly lied directly to Helixon.”