Last year was a year of firsts for me: the first time I lived on an Army post, the first time I needed a security clearance, and the first time I entered my appearance as defense counsel in a court-martial. It was also the first time my picture was on the front page of the New York Times, the first time I was quoted in dozens of news stories in papers all across the country, and the first time I was interviewed in front of television cameras on a daily basis. The surprising thing was how quickly this became my new normal. I woke up one morning, turned on the Today show, and saw myself walking down the court house steps in Fort Bragg, North Carolina, home of the 82nd Airborne Division. I quickly turned off the TV and got back to work.
This was the most publicized case of my 26-year career as a criminal defense lawyer: the court-martial of a brigadier general on charges of sexual misconduct with four female subordinate officers, including the sexual assault of a junior officer with whom he had been romantically involved for three years. The case was United States v. Brigadier General Jeffrey A. Sinclair, and I was a member of the joint civilian and military defense team that represented the general for 13 months, from February 2013 until his sentencing in March 2014.
The Sinclair prosecution coincided with a scandal about the epidemic of sexual assault and sexual abuse in the military, spurring a debate in Congress about the ability of the military justice system to deal with these cases. The crescendo of press about the breadth and scope of this problem created a perfect storm of publicity that set our defense back a mile right out of the gate. All of the factors that ultimately led to a successful resolution of the case were initially lost in a news story that depicted our client, a 27-year veteran and war hero, in the darkest of terms.
The drumbeat of press surrounding sexual assault in the military was sounding well before charges were brought in this case, and with good reason. Scandals involving the military’s handling of sexual assault were not new, but the issue had been given a powerful voice in the 2012 documentary The Invisible War. This documentary describes the struggles of three sexual assault victims and the failure of the military to prevent, recognize, or address their circumstances. (Eventually, as part of sexual assault prevention training, every general in the Army was required to watch this film.)
It was in this environment, in March 2012, that General Sinclair’s subordinate officer, referred to here as Captain A, first made the allegations against him. At that time, the general and Captain A were deployed in Afghanistan. Upon seeing emails from the general to another woman, Captain A, in what was later described by the defense as a jealous fury, reported the affair to their commanding officer, including in her report allegations of forcible sexual contact and coercion. These allegations were punishable by a term of life in prison. The investigation of the allegations and the affair revealed other misconduct by the general with other junior officers, all consensual. If proven, this other misconduct would also constitute various military offenses, albeit far less serious than the charges relating to non-consensual conduct. Six months later, formal charges were preferred and the public relations battle began in earnest.
My approach to the press has evolved over time, and my involvement in the Sinclair case accelerated that process. When I was a young lawyer, I was taught that no good comes from speaking to the press because no matter how much information you provide, reporters write only one story: Your client is guilty and faces a maximum sentence of 80 years. For years, I stuck with “no comment” and no off-the-record background information either. But over the course of my career, I have had to modify my approach in response to a changing environment. More and more, criminal cases are getting attention because of the press’s need to fill a news cycle that has become both instantaneous and continuous. The hunger of this news cycle, the growing fascination with criminal cases, and the democratization of information through social media can generate a consensus among the public about a case before trial that can have a profound effect on both the process and the outcome. This is especially true when trying to negotiate a reasonable plea agreement. Judges and prosecutors are public officials who are sensitive to negative press, and their fear of seeming soft on crime can prevent the parties from reaching a fair pretrial disposition. But what about jurors? How affected are they by the pressure in the press to convict? How influential is the press inside the jury room? Have we reached the point where the press is the 13th juror that you never got to voir dire and you can’t ever remove?
As I prepared to write this, I talked to some of my friends who have had the kind of press coverage we experienced in Sinclair. Criminal defense attorney Hank Asbill, who recently defended Virginia Governor Bob McDonnell at his trial on corruption charges, was dismayed at the persistently negative and often inaccurate press coverage the case received. Asbill believes that the level of reporting and editorializing about high-profile cases undermines the presumption of innocence the defendant is supposed to enjoy at trial and intrudes on the jury’s independence. In fact, right before the jury was set to get the McDonnell case, the Washington Post ran an editorial entitled “Former Virginia Governor Robert McDonnell Should Be Held Accountable Like Others Are.” So much for an unbiased jury.
Despite the constant press leading up to the McDonnell trial, the judge failed to provide adequate voir dire of the potential jurors on press exposure—which is now a central issue on appeal. Asbill told me that of all the voir dire questions he was denied the right to ask at McDonnell’s trial, one of the most important was “Will you as a juror be able to withstand the criticism from your coworkers, neighbors, and loved ones if you decide to acquit in this case?”
Asbill’s experience with high-profile criminal trials over the years has also led him to a shift in his views on talking to the press. “I still think it best if there is no discussion of the case from either side—no comment—no information would be better for the system,” he told me. “But that’s become almost impossible with government sources providing leaks and the use of ‘speaking indictments’ that skew the issues out of the gate.”
Rob Cary, who represented Senator Ted Stevens in his corruption trial, expressed a similar view. “My default stance has always been no comment and you try your case in court. But I’ve adjusted that now a bit with the government’s use of hyperbolic indictments and press releases. Sometimes there needs to be a correction of an incorrect narrative.” Cary raised another issue, particular to the criminal defense lawyer’s pretrial strategy: avoiding any possibility of being accused of leaking grand jury materials or information. Cary adheres to a strict policy of not discussing cases off the record with the press before trial to eliminate the possibility that grand jury leaks can be attributable to the defense.
Susan Bozorgi, a criminal defense lawyer in Miami and cochair of the American Bar Association Criminal Justice Section’s Defense Function Committee, noted that her philosophy is consistent with both the Model Rules and the Defense Function Standards that caution against extrajudicial statements that could prejudice a fact finder. Bozorgi believes that “there are rare instances that a client’s interest is served by media attention. I typically refrain from discussing my cases. However, the reality is the defense attorney has to remain mindful of the theories and themes of the case during any hearing and in any pleading filed pretrial. When the eyes of the world are on your case, the tone and direction of your pretrial advocacy is critical.”
The Structure of Military Justice
The Sinclair case faced all of these challenges, multiplied exponentially by both the structure of the court-martial and the ongoing debate in Congress about the ability of the military justice system to handle sexual assault cases. Turning first to the structural issues: A court-martial is presided over by a military judge, who is a high-ranking officer in the service, usually a colonel or lieutenant colonel. The jurors, also service members, have to be of a higher rank than the defendant. In our case, that meant any one-star general or higher who had more seniority than General Sinclair. To put it into a civilian context, it was like trying a bank robbery with the bank’s management team as your jury. Add to that the fact that any further promotions this particular management team hoped to achieve in the future had to be approved by Congress. Which brings us to the other challenge we faced. Throughout our representation of Sinclair, Congress was debating daily one particular issue: whether the top leaders of the Armed Forces—our jurors—could be trusted to make decisions about sexual assault prosecutions in the military.
Because of the focus on sexual assault and harassment in the military, Congress was debating several fixes to the military justice system, including the most hotly contested: whether to revamp the military justice system in a way that would remove decisions about sexual offense prosecutions from the commanding officers. Without providing a full course on the Uniform Code of Military Justice, the important facts are these: Each commanding officer of a unit is also the “convening authority” of a court-martial and has the final decision-making authority to accept a plea offer, change a sentence, or overturn a jury verdict. Prior to our trial, Air Force Lieutenant Generals Craig Franklin and Susan J. Helms had each exercised their statutory right of independent discretion to overturn panel verdicts of guilty involving charges of sexual assault in other cases. These decisions created an uproar in the press and in Congress while our case was pending, and placed these officers under a firestorm of criticism. (Both would later retire under the pressure.) The reaction in the press and Congress made an already difficult environment worse. Virtually every story about these issues included a reference to our case—the general on trial for sexually assaulting his subordinate.
And Congress wasn’t the only worry for our future jury. In the year before trial, President Obama made several statements during press conferences that were widely reported and discussed in the news media. Among other things, the president asserted a “no tolerance” standard for sexual assault to be communicated “up and down the chain” and stated: “I expect consequences.” Finally, he warned that he wanted swift action and “if we find out somebody is engaging in this stuff, they’ve got to be held accountable—prosecuted, stripped of their position, court-martialed, fired, dishonorably discharged. Period.” Press Release, The White House, Remarks by President Obama and President Park of South Korea in a Joint Press Conference (May 7, 2013), available at www.whitehouse.gov/the-press-office/2013/05/07/remarks-president-obama-and-president-park-south-korea-joint-press-confe.
It was clear: Our case was the test case for the Army and for the Pentagon, and passing the test meant convicting our client for forcible conduct and punishing him harshly to show that no one in the military is above the law.
This was the environment in which we had to attempt to either convince the Pentagon to negotiate a reasonable plea agreement or persuade a jury of generals to acquit our client. It became clear that, before we ever got to court, we would have to provide the jury and the Pentagon with air cover: a counter-narrative in the press that cast enough doubt on the strength of the government’s case that would justify a decision in our favor. Alternatively, we would have to create enough bad publicity for the Army to make the Army want to end the case. Of course, our efforts in this regard would have to comply with the Pennsylvania Rules of Professional Conduct and the Military Rules of Professional Conduct, both of which prohibit lawyers from making extrajudicial statements they know or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Staying within the limits of the rules and using the help of press relations professionals, step by step, we accomplished our goals.
Using a public relations team in high-profile cases, especially one with “crisis management” expertise, is common. I had resisted the use of these in the past, but our experience in the Sinclair case has softened that resistance considerably. First and foremost, high-profile cases have high-profile clients whose reputations can be ruined no matter what the outcome. As former Secretary of Labor Raymond Donovan famously said after his acquittal on fraud charges, “What office do I go to to get my reputation back?”
In past years, public relations firms have provided high-profile defendants and targets of investigation opportunities to speak publicly about their cases. In one recent example, Graham Spanier, the former president of Penn State, was charged with various criminal offenses as an offshoot of the Sandusky child abuse scandal. Spanier agreed to be interviewed by the New York Times in an attempt to restore his reputation while his criminal case dragged on in complicated pretrial motions practice. One of the first paragraphs of the story began with this sentence: “The case against Spanier is at best problematic, at worst fatally flawed. More than 20 months after the state branded him a criminal, he still awaits a trial.” See Michael Sokolove, The Shadow of the Valley, N.Y. Times Mag, July 20, 2014, at MM24, available at www.nytimes.com/2014/07/20/magazine/the-trials-of-graham-spanier-penn-states-ousted-president.html?_r=0. This one sentence cast doubt on the viability of his case and moved Spanier further from the dark shadow of Sandusky. As of this writing, when you search for “Graham Spanier” on Google, the Times article is the second result on the first page, immediately following his Wikipedia entry. That alone is a public relations victory.
In our case, we chose not to have the general interviewed. Instead, the public relations firm chose surrogates to tell his story. The most important of these surrogates was his wife, Rebecca Sinclair. Shortly after the preliminary hearing, at which copious evidence of the general’s affair with his junior officer was offered, Mrs. Sinclair wrote an op-ed piece about the devastating effects of multiple deployments on a military marriage and the toll the lengthy separations and anxiety took on the entire family. Rebecca Sinclair, When War’s Strains Lead to Infidelity, Wash. Post, Nov. 16, 2012, at A21, available at www.washingtonpost.com/opinions/when-the-strains-of-war-lead-to-infidelity/2012/11/15/1d6c020e-2f49-11e2-9f50-0308e1e75445_story.html. Mrs. Sinclair was also interviewed on television, where she emphasized the helpful evidence that had come out at the preliminary hearing about the consensual nature of the relationship. Much of this evidence was in the form of text messages found on seized cell phones. The messages were both personal and sexual in nature, and Mrs. Sinclair was able to discuss those messages honestly and gracefully as evidence of a consensual relationship. She also discussed Captain A’s admission that when she disclosed the affair, she had just seen emails between the general and another woman and was in a jealous rage. The theater of these interviews was riveting and the messaging was flawless.
The public relations firm also used another type of surrogate: a website. Soon after the preliminary hearing, the firm launched SinclairInnocence.com. This website presented the same exculpatory evidence that Mrs. Sinclair discussed in the form of exhibits from the preliminary hearing and excerpts from the transcripts. The website was extensively described in an article in the Army Times, providing an important hedge to the allegation of forcible conduct and delivering it directly to its intended audience: generals in the Army. These facts soon became woven into the thread of at least some of the press stories about the case.
Another trick we learned from the public relations firm was the use of the embargo. When I had finished writing my opening statement, it was provided to reporters but embargoed until after it was given. The press reporting on my opening accurately quoted my most salient points and created an additional vehicle for us to put our version of the offense out in our own words.
Aside from these tools, the public relations professionals managed the relationship between the press and the lawyers. At each pretrial hearing, and there were many, our public relations team worked with us to develop discipline around messaging that minimized the danger inherent in each interview. They also prevented us from being harassed as we went in and out of the building by promising and providing access to us on our terms. Our public relations team began to move the press away from a “guilty as charged” story line by providing off-the-record background information and sources that could corroborate a more objective picture. In our case, the firm’s efforts to plant seeds of doubt in the minds of reporters about Captain A’s story became critical when an important and surprising turn of events occurred.
The Coverage Shifts
In December 2012, a few weeks before trial, the defense team was informed by the government that Captain A had found another cell phone with evidence of the affair on it after meeting with the government to prepare for trial. The trial was adjourned and a date was set for a hearing on the facts surrounding this late discovery. In the meantime, the government provided a forensic report of the phone and a memo relating the captain’s story of how she had found it. One of our diligent and talented paralegals, Suzanne Burke, emailed the team with some surprising news: The forensic report demonstrated that the captain’s story of how she found the phone was untrue. Rather than having found it after prepping with government lawyers, she had actually found it weeks before that meeting and, what’s more, turned it on. Therefore, Captain A had been untruthful to the prosecutors and had knowingly withheld evidence. Our strategy became simple: get Captain A on the stand to testify falsely under oath and then use that leverage to negotiate a reasonable plea offer that admitted to the affair and other misconduct but did not include a charge of forcible sexual contact. We were confident the captain’s false testimony would provide the convening authority with the justification for this plea.
At the hearing, Captain A testified as we had expected and told her story of how she found the phone, a story that did not match the forensic evidence. During our cross-examination, she was given many opportunities to change her account but would not. Our next witness was a computer forensics expert hired by the defense. This expert had heard Captain A’s testimony and told the court, and all the assembled press, that her story was entirely inconsistent with the forensic evidence.
All the work our public relations firm had done over the past year bore fruit in that exact moment as all the reporters in the room began to shift their position on the story and reconsider the defense’s theories and themes. The press began to tell a different narrative: one about the uncertainties of the case and the holes in the captain’s story. As important as this was, the Army still rejected a reasonable plea deal. Soon after, in another surprising turn of events, the lead prosecutor withdrew from the case.
The New York Times story about the prosecutor’s withdrawal included the following facts: that the general offered to plead guilty to conduct unbecoming of an officer and to adultery, that the affair had gone on for years “and continued until the accuser discovered emails suggesting that the general was not going to leave his wife,” and that she confessed the relationship in “a fit of jealousy. . . .” More important, though, was the conclusion of the story: a quote from my partner and co-counsel Richard Scheff: “If the Army is changing its view of this case, we welcome it,” he said in an emailed statement. “If not, we remain disappointed that politics, rather than fairness and justice, is driving the decision making.” Richard A. Oppel Jr., Lead Prosecutor’s Abrupt Departure Rattles a Military Sexual Assault Case, N.Y. Times, Feb. 15, 2014, at A10, available at www.nytimes.com/2014/02/15/us/lead-prosecutors-abrupt-departure-rattles-military-sexual-assault-case.html.
Our message was clear: This case should plead; there is a reasonable disposition for all; and the Army is choosing to go forward and make an example out of General Sinclair, not because he is guilty, but because of pressure from Congress. In military justice terms, this is known as “unlawful command influence,” and it is a basis for dismissal or other remedy. Ultimately, our judge agreed that our offer to plead guilty had been rejected because of unlawful command influence. His remedy was to permit the parties to have another attempt at working out a plea deal with the convening authority at Fort Bragg, or have the case transferred to another base and another convening authority. The offer of this latter procedure was unprecedented, and the logistics of it would have created another several months of litigation and additional negative press coverage for the Pentagon. A negotiated plea, then and there, was the best result for all, but the tide had turned and the pressure was on the Army.
On the second day that the parties were working on hammering out the details of a plea negotiation, the government balked at both our offer and the facts we were willing to admit. We stood firm. The next day the New York Times ran a front-page story with the following headline: “How a Military Sexual Assault Case Foundered.” Alan Blinder & Richard A. Oppel Jr., N.Y. Times, Mar. 13, 2014, at A1, available at www.nytimes.com/2014/03/13/us/how-a-military-sexual-assault-case-foundered.html. Within two days, we had our plea deal. A few days later, the paper’s editorial board opined: “In the Sinclair matter, the commanding officer appears to have ignored his colleagues’ reservations in an effort to look tough on sexual assaults and avoid criticism at a moment when the military is under pressure to address its sexual assault crisis.” Editorial, A Broken Military Justice System, N.Y. Times, Mar. 18, 2014, at A22, available at www.nytimes.com/2014/03/18/opinion/a-broken-military-justice-system.html. Within a week of that editorial, the general was sentenced to a reprimand and $20,000 fine. For me, that was another in a long series of firsts: We had won the public relations battle and neutralized the 13th juror.