Sinclair Update (And Translations)

The NY Times has been all over the prosecution of Brigadier General Jeffrey Sinclair. Some has been great reporting. Some has been blatant hyperbole. Most of it is informative.

One of the problems with journalists reporting on military matters is that they often get some of the facts discombobulated because of their lack of understanding of the system. The same thing happens when journalists report on criminal proceedings. Precise terms of art are confused, thus confusing issues overall.

There are a few things that they conveyed fairly well. First, this case is a big hot mess. From the beginnings rumblings indicated that the complaining witness (alleged victim) had integrity problems from a court-martial standpoint. As we drew closer to trial, more was discovered that the defense team could and would use to devastatingly impeach her credibility. Second, the unlawful command influence angle created a nearly impenetrable and smelly marsh in the proceedings. Thanks to the recent attention given by congress, politicians, and vocal victim advocates, defense counsel have a few new cards to play (and they have been doing so with aplomb).

Note: Credit is absolutely owed to the defense counsel/organizations from the several services. They’ve leveraged the recent advocacy on behalf of victims and congressional posturing in a way that benefits their defenses and secures acquittals (or makes them much more likely than in years past). It is fun to see my old comrades in Trial Defense walking into the courtroom with such a hard-earned swagger.

Let me explain a few things that were mentioned in the article.

1. He’s going to jail, right?

Is jail possible? Yes. Is it likely? No.

Sinclair agreed to plead guilty to the lesser charges. This includes misusing a government charge card, disobeying an order (I assume this to be the digital pornography stuff), and adultery. The government agrees not to pursue the big charges related to sexual assault.

Note: The guilty please he entered earlier last week are still valid, so this deal ensures that he pleads guilty to all or most of the lesser charged offenses.

Were it not for the sexual assault charges, Sinclair would not be facing court-martial. Instead, it would have been handled through administrative and nonjudicial punishment means. When this all started, I remarked to a friend that I’d attempt to have the lesser charges adjudicated through nonjudicial punishment, thereby making the court-martial one that only addressed only the sexual assault. It has been done before, and it tends to benefit both sides, as they can both address the charges that merit a court-martial.

One of the things I detest is when someone is found not guilty of a greater charge, but guilty of a lesser one (ones) that, taken alone, would have been adjudicated in a forum that would not impose a criminal conviction. A good example of this is adultery. Taken alone, it is worthy of an administrative punishment that, at worst, results in the loss of money (and possibly rank for junior enlisted personnel) and a likely end to one’s military career. However, is is often a lesser charge added to many allegations of sexual assault. This is a textbook example of a time when I’ll try to get the government to allow nonjudicial punishment for the lesser charge in exchange for it being removed from the court-martial charges. Then, if he is found guilty of the greater charge at trial, the government can present the results of nonjudicial punishment to show aggravation.

Don’t take this as me second-guessing the Sinclair defense team. I presume his attorney considered this and, through talks with his client and negotiations with the government, decided to proceed with a guilty plea at court-martial for the lesser offenses. Given what they know, this may be the best outcome.

Knowing this, is he likely to see Ft. Leavenworth soon? I doubt it. If I were a betting man (which I am), I’d bet on a reprimand and a fairly stiff forfeiture of pay. That’s what would happen if the lesser charges were taken alone.

Though, this case has already been a train wreck. So, expect the unexpected. It was reported that one of the lesser charges was maltreatment of a subordinate, which is the one that might warrant stiffer penalties, depending on how the judge sees it. As the NYT explains:

In that portion of the plea document, General Sinclair admits that he treated the captain “in a manner which when viewed objectively under all the circumstances was unwarranted, unjustified and unnecessary and reasonably could have caused mental harm or suffering during the course of an ongoing inappropriate sexual relationship.”

2. Will he be a registered sex offender?

Nope. Those charges are now off the table.

3. No loss of rank? What?

The article mentions the following:

Defense lawyers say General Sinclair is willing to retire as a lieutenant colonel — two rungs below his current rank, and the last rank that he served during which he is not accused of any illegal acts — which would probably cost him more than $1 million in total retirement pay.

NYT dangles this carrot, but fails to explain it.

Let me explain.

The court-martial cannot reduce an officer in rank. This is because of the nature of a commission (he is a commissioned officer) and some strange legal nuances. So, he’ll retire a Brigadier General, right?

Not so fast, my friends.

First, I do think he will be allowed to retire. The lesser charges simply aren’t enough to warrant a Dismissal (equivalent to a Dishonorable Discharge). In fact, that may be a provision of the plea agreement.

When an officer retires from the Army, they face the possibility of a Grade Determination Review Board if any negative information is found in their military files. In this case, plenty of information will be placed in his file to include the conviction record and probably a letter of reprimand that explains the charges and the who, what, when, where, and how. Evidently, the allegations go back to a point when BG Sinclair was Colonel Sinclair. This is important.

The Grade Determination Review Board is tasked with one thing. They must decide the rank that an officer last held honorably. 

Here’s an example: Lieutenant Colonel X is retiring. He, a married man, has a letter of reprimand for having an adulterous relationship (consensual) with a married female. This happened while he was a Lieutenant Colonel. The board will review his file, read the letter, and decide whether they believe he held the rank of Lieutenant Colonel honorably. Generally, the board will decide that he did not. Then, they look at his records while he was a Major (one level below Lieutenant Colonel). If they find no negative or dishonorable information, they will decide he can retire at the grade of Major, because it is the rank he last held honorably.

In this case, it appears information will soon exist in Sinclair’s official records to show that he committed misconduct while both a Colonel and a Brigadier General, making Lieutenant Colonel the last rank he held honorably.

Depending on his lifespan, this loss of rank could cost him millions.

At the same time, I know plenty of people who are happily retired as Lieutenant Colonels, having served successfully and without incident. But, that’s another story.

4. Evidence in Aggravation?

Sentencing in military courts is like a trial unto itself. Prosecutors present witnesses and evidence in aggravation. Defense counsel presents evidence in extenuation and mitigation.

What does the prosecution have? Guilty plea and probably a stipulation of fact where the General admits to some of the embarrassing and harsh truths of the charges to which he pleaded guilty.

What does the defense have? The guy was in the military a long time. Plenty of evidence exists to show that he is bright and capable. Do not confuse this as a defense. Much has been made of the perceived abolishment of the “good soldier defense.” This is sentencing, defenses do not apply, and it is perfectly valid in both extenuation and mitigation.

Will the prosecution call the complaining witness to testify? I doubt it. Once she takes the stand, even during the sentencing phase, her character trait of truthfulness is at issue. Defense counsel will, undoubtedly, cross examine her in a way that discredits any facts she may offer as aggravation.

5. Who are the big winners?

I don’t know that there are any. Sinclair’s name and career are in the toilet. The prosecution and command have looked like buffoons who cave to political pressure from congress rather than adopting a determination to seek “justice.”

The defense team showed dogged determination and able lawyering. They are probably the biggest winners. Lead counsel takes a lot of credit, but I think more is owed to the fact that they assembled a very capable team.

 

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One thought on “Sinclair Update (And Translations)

  1. I am dealing with a possible OGD right now based upon what the AF has yet to disclose. Thankfully, we AF JAGs are very familiar with the process thanks to BG Fiscus and Col Murphy, the latter having been selected for General but ended up retiring as an O-2. That’ll hurt the wallet!

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