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The court-martial of Brig. Gen. Jeffrey Sinclair, shown last year at home in Fort Bragg, N.C., with his wife, Rebecca, has hit some snags, including changes to the prosecution team shortly before trial.

TRAVIS DOVE • New York Times,

Army's high-profile sex case thrown into turmoil

  • Article by: Richard A. Oppel Jr.
  • New York Times
  • February 14, 2014 - 9:20 PM

The military’s most closely watched sexual misconduct prosecution has been thrown into turmoil after the Army’s lead prosecutor abruptly left the case this week, less than a month before the scheduled court-martial of Brig. Gen. Jeffrey Sinclair on sexual assault charges.

The departure of the prosecutor, Lt. Col. William Helixon, came just days after defense lawyers said in interviews that the colonel told them that he had come to think that a jury would not believe the testimony of the prosecution’s chief witness, a 34-year-old captain.

Sinclair, 51, who was recalled in 2012 from his job as deputy commander of U.S. forces in southern Afghanistan, has acknowledged a three-year affair with the witness, a military intelligence officer who had worked for him. But he has denied her accusation that on two occasions he forced her into oral sex and threatened to kill her and her family if she told anyone about the affair.

The general faces additional counts of misconduct based on the testimony of other prosecution witnesses — including accusations that he pressured a female subordinate to send him naked photographs of herself — in a case that has become a lightning rod for critics who say the military has played down sexual assault in the ranks. If convicted of the most serious charges, Sinclair could face a life sentence.

Only a handful of generals have faced court-martial in recent decades, legal experts say.

Maj. Crystal Boring, a spokeswoman at Fort Bragg, N.C., said in an e-mail that Helixon voluntarily left the case for “personal reasons.” The general was a commander with the 82nd Airborne Division before being placed on limited duty because of the criminal investigation.

For several days, the New York Times had been putting questions to Army officials at Fort Bragg and the Pentagon about what defense lawyers described as Helixon’s misgivings about the case and his efforts to persuade superiors to drop the most serious charges. According to the defense, Helixon also disclosed that he believed the captain had not told the truth during testimony at a pretrial hearing last month.

It was impossible to confirm the defense team’s description of conversations with Helixon, who did not respond this week to e-mails or to messages left at his office and on his wife’s cellphone. Army officials at the Pentagon declined to comment.

Boring declined to discuss other aspects of the case or whether the military would seek to delay the court-martial, scheduled for early March. She said prosecutors would “continue to pursue resolution of these charges,” and asserted that personnel changes were common in lengthy cases.

But if it turns out that the prosecutor’s departure stemmed from disagreement about how the case should be handled, that would be “highly unusual,” said Eugene Fidell, who teaches military justice at Yale Law School.

“It’s possible the prosecutor was removed,” Fidell said, assuming that the account of Helixon’s concerns was accurate. “But more likely, he was extremely uncomfortable with the way things were unfolding and felt an obligation to remove himself from the case because he may have felt he would be put in an untenable position from a professional responsibility standpoint.”

The defense has raised sharp questions about testimony at a hearing last month, when the accuser said under oath that she had found an old cellphone Dec. 9, the day after she had finished a three-day series of meetings with prosecutors.

A defense expert testified that forensic analysis suggested that the captain had actually charged and restarted the phone several weeks earlier. The defense lawyers assert that the phone contained further evidence of the affair — evidence that they contend bolsters their argument that all sexual relations between Sinclair and the captain were consensual.

Sinclair, who is married with children, has offered to plead guilty to conduct unbecoming of an officer and to adultery, which is punishable under military law, his lawyers say. But they have pressed hard in negotiations against his serving prison time.

The affair began in Iraq five years ago and continued until the accuser discovered e-mails suggesting that the general was not going to leave his wife, defense lawyers say. In a fit of jealousy, they claim, she confessed the relationship to Sinclair’s commander.

The prosecution has painted a very different picture of the affair. Entries in the captain’s diaries indicate that she cared deeply about him. But the prosecutors say she tried to break off the relationship, then was bullied, threatened and forced into sex by Sinclair.

Greg Jacob, the policy director of the Service Women’s Action Network, an advocacy group, said that even without the testimony of the chief accuser, there was significant evidence against Sinclair on other counts.

“If you take the most serious charges out, he’s still done plenty wrong to warrant his being punished by the military,” Jacob said.

Richard Scheff, the lead defense lawyer, said Helixon told him he had expressed concerns about the accuser to a superior at the Pentagon, but was told to move forward to trial on the same charges.

Scheff, a former federal prosecutor who is now chairman of the Montgomery McCracken Walker & Rhoads law firm in Philadelphia, said, “We greatly respect” Helixon, adding that the defense lawyers might try to call him to testify about what they contend has been undue command influence on the prosecution. He said pressure to demonstrate that the military was getting tough on sexual assault had prejudiced the case.

“If the Army is changing its view of this case, we welcome it,” he said in an e-mailed statement. “If not, we remain disappointed that politics, rather than fairness and justice, is driving the decisionmaking.”

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