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Judge's decision is latest twist in Army sex case

Wednesday - 3/12/2014, 3:32am  ET

FILE - In this March 4, 2014, file photo, Brig. Gen. Jeffrey Sinclair, right, leaves the courthouse with his lawyers Richard Scheff, left, and Ellen C. Brotman, not pictured, following a day of motions at Fort Bragg, N.C. A military judge declined Monday, March 10, 2014, to dismiss sexual assault charges against Sinclair after reviewing what he said was evidence that political considerations influenced the military's handling of the case. (AP Photo/The Fayetteville Observer, James Robinson, File)

EMERY P. DALESIO
Associated Press

FORT BRAGG, N.C. (AP) -- The trial of an Army general accused of sexual assault moved into uncharted legal territory Tuesday when the judge dismissed the jury to allow the defense time to hammer out a new plea deal with the military.

While the highly unusual decision gives Brig. Gen. Jeffrey A. Sinclair a second chance to negotiate the dismissal of the most serious charges, he appears certain to face an inglorious end to a nearly 30-year career spanning service in three wars. His lawyers said it could take weeks to finalize an agreement.

Experts in military law said Judge Col. James Pohl is seeking a just and innovative solution for a courtroom situation that doesn't fit prior case law.

"No one has ever seen anything like this before, but it seems like the right thing to do," said retired Maj. Gen. Walt Huffman, a Texas Tech University law professor who previously served as the Army's top lawyer. "This case was already unusual in so many respects."

Judge Pohl reviewed newly disclosed emails Monday and said he found the appearance of "unlawful command influence" in Fort Bragg officials' rejection of a plea bargain with the general in January. He declined to dismiss the charges outright, but allowed Sinclair's lawyers to negotiate with Army officials not previously involved with the case.

If they fail to reach a plea deal, the trial would resume. But with the jury sent packing, it's unlikely that could happen quickly.

The jury of five two-star generals was seated last week, traveling from as far away as Korea and Alaska. They appeared confused as Pohl sent them home, saying they may or may not be asked to return.

"Sometimes there are twists and turns you can't anticipate," Pohl told the jurors.

Sinclair, 51 and the former deputy commander of the 82nd Airborne Division, is accused of twice forcing a female captain to perform oral sex on him in Afghanistan in 2011 during a three-year extramarital affair. He has admitted to adultery, which is a crime in the military, but denied assaulting the woman.

Believed to be the highest-ranking U.S. officer ever court-martialed on sexual assault charges, Sinclair appeared upbeat as he left court Tuesday, joking with the military police guarding the door.

Lead defense attorney Richard Scheff said his client would not agree to plead guilty to any charges involving sexual assault or any charges that would require him to register as a sex offender.

"He did not sexually assault anybody," Scheff said. "He did not threaten anybody. He's not maltreated anybody. We'd love to resolve the case. But if we can't, we look forward to our day in court and his vindication."

Lt. Col. Robert Stelle, the lead prosecutor, declined to comment.

Last week, Sinclair pleaded guilty to three lesser charges involving adultery with the captain and improper relationships with two other female Army officers. Those charges could bring 15 years in prison. A trial then began on the remaining charges, with a potential sentence of life in prison.

Now, with Tuesday's decision, the defense may ask Pohl to withdraw Sinclair's guilty plea in favor of whatever new deal can be reached. Sinclair also faces charges he defrauded the Army of more than $4,000 in travel expenses to visit his mistress.

The latest upheaval in the case comes as the Pentagon is under heavy pressure from Congress to fight sex crimes in the military. On Monday, the U.S. Senate approved legislation cracking down on misconduct.

Eugene R. Fidell, a former U.S. Coast Guard lawyer who now teaches at Yale Law School, said revelations about how Sinclair's previous plea offer was handled will help lawmakers who want to remove authority for prosecutorial decisions from the military brass.

"This whole episode shows there is a problem in a system that needs to be modernized to get the commander out of the driver's seat," Fidell said.

In December, Sinclair offered to plead guilty to some of the lesser charges in exchange for the Army dropping the sexual assault charges, but he was ultimately turned down by the general in charge of Fort Bragg.

Under the military code of justice, the decision on whether to accept Sinclair's plea offer was supposed to be based solely on the evidence.

But Pohl said the newly disclosed emails showed that lawyers and the general overseeing the case had discussed a letter from the accuser's lawyer, which warned that allowing the general to avoid trial would "send the wrong signal."

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