Questions Raised About Military Sex Assault Prosecutions

The stunning resignation of the military lawyer who was prosecuting an Army general on a charge of forcible sodomy is raising new questions about how commanders are handling sexual assault cases.

It is widely believed that Army attorney Lt. Col. William Helixon resigned in protest because he believed Army commanders were being too aggressive in their prosecution of Brig. Gen. Jeffrey Sinclair.

"It's clear that the commander wanted something done that Lt. Col. Helixon thought was problematic from an ethical standpoint," said Eugene Fidell, a military law expert who teaches at Yale Law School.

Sinclair's trial is set to begin March 4, a rare court-martial for a general officer. The charges include forcible sodomy and adultery related to an extramarital relationship and inappropriate conduct with several women. Lawyers for Sinclair filed a motion made public Tuesday asking military judge Col. James Pohl to throw out the case. Sinclair's lawyers argued that testimony from the primary witness against him is unreliable and that top Pentagon brass improperly meddled in prosecutorial decisions.

Pohl has denied at least two past motions to dismiss from the defense. Sinclair's court-martial will be at Fort Bragg, N.C.

Sinclair's attorneys say Army commanders have tried to unlawfully influence his case because it has become a political lightning rod for the broader issue of sexual assault in the military. "It's obvious that politics must be affecting the decisions," said defense attorney Richard Scheff in a recent interview.

The issue of command influence may soon dominate the Sinclair trial. Scheff said he plans to ask the now-former prosecutor to take the witness stand and disclose his private conversations with some top Army officials, testimony that he said could prove unlawful command influence and result in the criminal charges being dismissed.

Convicting a general officer of sexual assault would be a historic first for the Army. But Helixon, whose resignation was first reported Feb. 14, allegedly thought Sinclair's accuser, a 34-year-old captain, was not a credible witness. Helixon made efforts to persuade his superiors to drop the most serious charge, a defense attorney said.

The Army released a statement saying Helixon resigned for "personal reasons" and the command remains committed to pursuing Sinclair's prosecution. Army officials at Fort Bragg, N.C., declined to answer questions about the case or the defense's allegations.

Fidell said the case highlights the reasons why Congress should strip military commanders of their authority to handle major prosecutions, a far-reaching change to military law that is under consideration on Capitol Hill.

Military commanders must walk a fine line. As critics say the military is too lenient on sexual offenders, commanders are under pressure to prosecute those cases aggressively. Yet the Sinclair case highlights the opposite concern — that politically minded commanders are prosecuting sexual assault cases too aggressively in an effort to please political leaders in Washington, and the result is threatening some troops' right to a fair trial.

Fidell and others say the military should create independent commands to prosecute serious crimes rather than allowing courts-martial to be overseen by military commanders with no legal training.

"If anybody needed proof about the unreliability of the current command-centric system, here it is, this is the most glaring example," Fidell said of the Sinclair case. "This is about an 18th-century [Uniform Code of Military Justice] charging system coming into collision with the 21st-century attorney's code of professional conduct."

Dozens of troops accused of sexual assault in the past year have claimed unlawful command influence and suggested they were not receiving a fair trial. As sexual assault cases have become heavily politicized, careerist commanders want to show they are cracking down, some defense attorneys say.

Morris Davis, a retired Air Force lawyer who teaches at Howard University School of Law in Washington, agreed that the current system allows politics to seep into the criminal justice process. Military commanders may face tension between notions of fairness and recommendations from their attorneys on the one hand and an instinct to please the Pentagon leadership on the other.

"Are they going to do what they truly think is the right thing to do? Or are they going to do what they think the people above them want them to do?" Morris said.


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