Jury selection is underway in the court-martial of Brig. Gen. Jeffrey Sinclair. (AP file)
FORT BRAGG, N.C. — Reversing an earlier decision, the judge in the sexual assault court-martial of Brig Gen. Jeffrey Sinclair has struck four jurors over their connection to a key witness who initiated the investigation into Sinclair and is a top Army official.
“That leaves us with a total of zero members,” the judge, Col. James Pohl, told the court this morning.
Pohl said because the potential jurors — all two- or three-star generals — know Lt. Gen. James Huggins, the Army’s deputy chief of staff for operations, G-3/5/7, and a potential witness in the case, they could be deemed biased.
“After thinking about it I concluded that although none had a personal relationship with Gen. Huggins, they did know him personally,” Pohl told the court. “[Huggins] does not come into court [merely] as a three-star they respect because … of his rank.”
Pohl said he decidedbased on the potential jurors’ “personal knowledge as an individual, combined with the credibility of [Huggins’] rank.”
To resolve the issue of the potential jurors’ intertwined relationships with key witnesses, which was raised by the defense, Pohl said he will have the remaining 12 potential jurors review a list of the 130 potential witnesses in the case to see whether the potential jurors know any of them. Defense and prosecution lawyers may further question any who “survive” that process, he said.
The complications highlight the difficulty of seating a jury to court-martial a one-star general, a rare move. By law, all the jurors must be senior in rank to the defendant, so the initial jury pool was made up of lieutenant and major generals. In the Army, only 230 general officers would have qualified.
Defense attorney Richard Scheff argued Wednesday the first 12 prospective jurors should be disqualified because of their exposure to Army sexual assault training and their relationships to key witnesses, particularly Huggins.
When Huggins was commander of the 82nd Airborne in Afghanistan, he initiated the investigation of Sinclair, who was then the 82nd deputy commander for support.
Sinclair is accused of forcing a captain with whom he had a three-year consensual affair to twice perform oral sex while she and Sinclair were deployed to Afghanistan in 2012. He is also charged with having inappropriate relationships, disobeying orders and other misconduct.
Sinclair, who has pleaded not guilty to all charges, faces a maximum sentence of life in prison.
Pohl opened court this morning saying that after “reviewing my notes and conducting other research on this issue,” he decided to grant the request of the defense to exclude the four jurors he had seated the day before.
Pohl’s move raises the possibility that officers from outside the Army may be called to serve on this jury. On Wednesday, Pohl asked prosecutor Lt. Col. Will Helixon why the jury pool could not have been comprised of flag officers from other services to avoid a pool of jurors with connections to witnesses and each other.
“I understand the do-loop this puts you in, but the standard is the same,” Pohl said.
Helixon responded that the Army officers in question are asked to set aside personal and professional relationships on grave matters on the battlefield and concerning national security.
“They make life or death decisions, they [make] strategic decisions, they are the best and brightest of the U.S. Army who we rely on to keep us safe,” Helixon said. “Are they going to be able to put aside whether they worked with a witness in this case? The answer is yes.”
The four jurors seated Wednesday, who were struck today, are:
■ Maj. Gen. Anthony Cucolo, commandant of the U.S. Army War College.
■ Maj. Gen. Kenneth Dowd, logistics operations director for the Defense Logistics Agency.
■ Maj. Gen. Warren Phipps, commander of the First Army Division West at Fort Hood.
■ Maj. Gen. Bradley May, the deputy commander for initial military training.
On Wednesday, Pohl struck four potential jurors at the request of the defense and over the objections of prosecutors:
■ Lt. Gen. Mark Bowman, the top communications official, or J-6, at the Joint Chiefs of Staff, was excluded because of his relationship with Huggins and because Bowman said his wife was sexually harassed by a fellow officer while Bowman was deployed, a scenario the defense argued was too similar to an aspect of the allegations against Sinclair.
■ Lt. Gen. Patricia McQuistion, the deputy commander of Army Materiel Command, was excluded because she became emotional when discussing the alleged rape of a close relative and because she said she was pre-disposed to believe Huggins.
■ Lt. Gen. Keith Walker, the director of Army Capabilities Integration Center, was excluded because he works closely with Huggins and sees him almost daily.
■ Maj. Gen. Jefforey Smith was excluded because he has served three times with Huggins. Another reason was a because a close family member was allegedly sexually assaulted as a child, and the alleged perpetrator was never arrested.
The prosecutors and defense attorneys agreed Wednesday that these four should be excluded:
■ James L. Terry, commander of Third Army/Army Central, was removed because he was involved with the Sinclair case last year in Afghanistan after Huggins initiated the investigation.
■ Lt. Gen. David Halverson, chief of staff of the U.S. Army Training and Doctrine Command, was eliminated because of his duty relationships with other potential jurors.
■ Maj. Gen. Michael X. Garrett, the commander of U.S. Army Alaska, was excluded because he was inflexible over sentencing in the case. He said Sinclair, if found guilty of the accusations, should receive the maximum sentence of life in prison.
■ Maj. Gen. William Hix, deputy director and chief of staff of ARCIC, was excluded because he said that a sexual relationship between a general and a captain could not be completely consensual because of the flag officer’s power over the other officer.