Judge weighs dismissing sex assault case over command influence

A military judge is considering throwing out sexual assault charges against an Army general after determining there was improper command influence in the case.

The judge, Col. James Pohl, on Monday found there was the appearance of unlawful command influence after reviewing emails between a high-ranking Pentagon lawyer, prosecutors and the commander handling the case.

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Pohl’s next step in the case at Ft. Bragg is to decide whether to drop the charges against Brig. Gen. Jeffrey Sinclair or proceed with the case, the Associated Press reported.

The prospect of unlawful command influence arose over the weekend after prosecutors turned over emails where the commanding general was weighing a plea deal, which was ultimately rejected.

The female captain who is accusing Sinclair of sexual assault was opposed to the plea deal. Her lawyer, Capt. Cassie L. Fowler, wrote in December that the deal would "have an adverse effect on my client and the Army's fight against sexual assault,” according to the AP.

"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.

Lt. Gen. James Anderson, who was commander of the base and made the final decision to reject the plea offer, told the court by telephone Monday that the only thing he weighed was the opposition of the accuser.

In the military’s Uniform Code of Military Justice, “unlawful command influence” can be grounds for having a case dismissed or re-tried if the commander leading the case is influenced by a superior or a case’s political ramifications.

Sinclair has admitted to a three-year affair with the female captain, and he is accused of twice forcing her to perform oral sex in Afghanistan in 2011. Sinclair last week pleaded guilty to three lesser charges involving adultery.

Sinclair's case is one of the high-profile incidents that has sparked criticism of the military's handling of sexual assault and prompted Congress to make changes to the way the military deals with assaults within its ranks.

The case has been cited by both sides of the debate over taking the decision to prosecute cases outside the chain of command. Opponents of removing commanders from the decision have noted that the prosecutor in this case did not want to pursue the sexual assault charge — and then left the case after the commander decided to do so.

The latest emails came out over the weekend after Sinclair’s attorneys pushed for them, and Pohl on Monday criticized the prosecution for not handing them over sooner.

"The only reason we are in this conundrum is because of the government's late notice," Pohl said, according to the AP.