RALEIGH, N.C. (AP) — A military judge was considering Monday whether a top lawyer at the Pentagon unlawfully interfered in the case against a brigadier general charged with sexual assault, threatening the high-profile court martial.
The latest twist in the case comes at a time when the Pentagon and Congress are grappling with the problem of sexual assaults within the military ranks.
After lawyers for Brig. Gen. Jeffrey A. Sinclair presented the new evidence Monday morning, military judge Col. James Pohl dismissed the jury for the rest of the day. Pohl then heard arguments and testimony about whether he should dismiss some or all of the remaining charges against Sinclair.
At issue is an email chain from December between the prosecution team at Fort Bragg and a top Pentagon lawyer regarding a potential plea deal that was ultimately rejected. It is unlawful in the military justice system for senior commanders outside the chain of command to interfere in prosecutorial decisions.
A female captain with whom the married general admits having a three-year affair says he twice force her to perform oral sex while they were stationed in Afghanistan in 2011. Sinclair is believed to be the highest ranking U.S. military officer to ever face trial for sexual assault.
In a December 16 email, the deputy staff advocate at Fort Bragg, Lt. Col. James Bagwell, corresponded with Brig. Gen. Paul Wilson, the assistant judge advocate general for military and operational law based in Washington.
At the time, Bagwell was advising Fort Bragg's top commander on whether to accept an offer from Sinclair to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges.
In the email, Bagwell asked Wilson for his opinion about the plea offer. Bagwell testified Monday that he later spoke with Wilson by phone. Wilson was previously stationed at Bragg and Bagwell described him as mentor.
"We very briefly discussed our personal opinions on the case," Bagwell said. "He gave me his opinion."
However, Bagwell testified that Wilson, a superior officer, never directed him on what he should do.
Lt. Gen. James Anderson, as the commander of the base, made the final decision to reject the plea offer.
Testifying from Afghanistan by telephone, Anderson said the only thing he weighed to make up his mind was the opposition of Sinclair's primary accuser to the deal.
In a December letter sent by her attorney, the female captain at the center of the case opposed the proposed plea agreement. The Associated Press generally does not name those who say they were sexually assaulted.
Writing on behalf of her client, Capt. Cassie L. Fowler suggested the proposed deal would "have an adverse effect on my client and the Army's fight against sexual assault."
"Acceptance of this plea would send the wrong signal to those senior commanders who would prey on their subordinates by using their rank and position, thereby ensuring there will be other victims like my client in the future," Fowler wrote.
Pohl has previously expressed concern that Fowler's letter improperly tied whether to accept Sinclair's plea to the political climate surrounding the case, rather than the strength of the evidence against the general.
Last week, Sinclair pleaded guilty to three lesser charges involving adultery with the captain and improper relationships with two female Army officers. Adultery is a crime in the military.
A trial then began on the remaining sexual assault charges.
When reviewing the emails, the judge will likely be trying to figure out whether the Pentagon attorney was asked to give his opinion or was issuing orders to a subordinate, said Walt Huffman, a retired Army major general who was the Judge Advocate General of the Army from 1997 to 2001.
"Is this a reflection of two lawyers batting back and forth what is the right thing to do here? Or is this a command edict from on high saying you may not take the plea deal?" said Huffman, now a professor at the school of law at Texas Tech University.
Without seeing the emails, Huffman didn't want to speculate on what the judge might do. But in general, if he determines a superior lawyer crossed the line, he can dismiss the charges, either with prejudice, so they can't be refiled, or without prejudice, allowing prosecutors to file charges at a different base to get rid of any improper influence.
But since in this case the lawyer is so high up, finding a new jurisdiction might be impossible, Huffman said.
"If that's coming from the Pentagon, that's hard to do," Huffman said.
Sinclair is the highest ranking military member to face a sexual assault charge and is believed to be only the third high-ranking military officer to face court-martial.
"There are a lot of unusual things about this case that are almost without precedent." Huffman said. "It's going to be a challenge for the judge and jury to get all this right in this atmosphere."