In a story available here Rowan Scarborough reports for the Washington Times that:

Retired Rear Adm. Patrick J. Lorge charges in a May 5 signed affidavit that the then-judge advocate general of the Navy and her deputy tried to persuade him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Mr. Lorge’s career.

. . .

Mr. Lorge said he came to believe that there was insufficient evidence to convict and wanted to overturn the verdict. His staff judge advocate advisers tried to talk him out of it. Failing, they then brought in the Navy’s powerhouse admirals to talk him out of it.

Vice Adm. Nanette DeRenzi, then judge advocate general of the Navy, talked to him in his office.

. . .

He then spoke by telephone with Vice Adm. James Crawford III, then Adm. DeRenzi’s deputy and the current judge advocate general of the Navy.

. . .

“Upon my review of the record of trial from this case, I did not find that the government proved the allegation against Senior Chief Barry beyond a reasonable doubt,” Mr. Lorge wrote. “Absent the pressures described above, I would have disapproved the findings in this case.”

The case is that of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Admiral Lorge approved the findings and sentence, and the NMCCA affirmed in an opinion available here. The CCA’s opinion included this detail:

In relevant part, the convening authority stated:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause[.] The evidence presented at trial and the clemency submitted . . . was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence. I encourage the Appellate Court to reconcile the apparent divergent case law addressing the testimony that an accused may present during sentencing for the purpose of reconsideration under R.C.M. 924. Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartiality of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge pursuant to Article 66(c), UCMJ, thereby allowing the accused to retire in the rank that he last honorably served.

United States v. Barry, No. 201500064, slip op. at 6-7 n.14 (N.M. Ct. Crim. App. October 31, 2016) (marks in original) (link to slip op.).

28 Responses to “Retired Admiral wishes he had disapproved a conviction when he had the chance”

  1. An accused says:

    Just imagine how fruitful a legitimate investigation into UCI from the top down on 120 cases the past 4 years “could”  be if done appropriatley. … as sad as it is that the Admiral didn’t fufill his duty at the time, hopefully him saying these things outloud will encourage others to follow suit.

  2. Annonymous says:

    had the pleasure of spending some quality time with senior chief in the brig. We worked out on several occasions and discussed various matters. One question I always asked is what country will lock up a decorated navy seal like this for no reason. These are one of the reasons why we should all come together and have a walk to Capitol Hill. This whole running careers with no evidence due to political pressure needs to stop.

  3. Concerned Defender says:

    An absolute indictment and disgrace for the Armed Services and all those involved in railroading an innocent man – whose life was absolutely ruined and years lost that are unrecoverable no matter the outcome, all because a confused woman changed her mind on anal sex and suffered an instant of discomfort.  This woman willingly got naked, laid on her stomach, and allowed herself to be tied up, bound and handcuffed for anal sex, and then was surprised when it stung?!  And ruined this Sailor over it.  The cowards in leadership at all levels who pursue this are a disgrace to the uniform, particularly the terrible judicial decisions at the trial court to deny justice and defense.  Unbelievable.  I hope this Sailor is exonerated and is rewarded handsomely for malicious and irresponsible prosecution.

  4. Sir Visdis Crediting says:

    Based on the NMCCA opinion, I’m interested to know why the Convening Authority thought the evidence was insufficient. It doesn’t seem like the woman was double minded about anal sex. Although, it is curious that the court provides a citation to the record where she said, “Go slow,” but doesn’t cite where she refused consent.

  5. Charlie Gittins says:

    “Go slow”  — the operative word being “go”.  This was not sexual assault.  Frankly I am flummoxed at the decision to go judge alone with a female military judge.  The case screamed out for a panel. 

  6. DCGoneGalt says:

    Ex post facto integrity.
     
     

  7. DCGoneGalt says:

    And just like ex post facto laws, ex post facto integrity has no effect.

  8. RA says:

    @ Charlie Gittins: Are you flummoxed that the decision was to go judge alone? Or, are you flummoxed that the decision to go judge alone was with a female judge? It’s a shame that you insinuate a “female” military judge would be a biased trier of fact.
    Having been a military prosecutor for many years, I know how difficult it is for some members to believe that a “super troop” with an honorable military service can commit certain crimes. In those cases, it’s always easier to believe that the accused is the victim of lies and insufficient evidence. However, even some of the most brilliant service members are capable of committing crimes that seem out of character with their professional standing.

  9. Scott says:

    Does anyone have a copy of Admiral Lorge’s Affidavit?  Might have missed it, but I don’t see a full copy in the story, just quotes. 

  10. k fischer says:

    Charlie,
     
    I have found many females in the military are a little more conservative and willing to call bs on a specious allegation not supported by the facts.  In this case, you have a woman who was into kinky sex a la 50 Shades of Grey, who sent post-coital texts of how she wanted to get with him again, and then made an allegation of forcible sodomy when he did not get back with her.  In the very least, it screams reasonable doubt, and if the MJ was known for understanding the concept of reasonable doubt, then I would have trusted going MJ alone. 
     
    Also, I noticed he did not testify on the merits, so maybe his attorneys thought the panel would convict him.  That would be a major concern I would have if I knew my client was not going to take the stand. Although, I would imagine that I would have put him on the stand to testify and gone panel in this case, and looked into her mental health.  Certainly, he could have explained her transformation from no anal to yes anal.  There were discussions.  But, was lube purchased?  Was a “safe” word established?  Let’s say hypothetically they chose a safe word of “Armageddon,” but she did not say the safe word, she was saying “stop” which in a role play bondage situation, does not actually mean “stop.”  Of course, the Government and NCIS who are trained to “believe the victim” aren’t going to ask her about that stuff, and even if they did, she wouldn’t tell them. But, without this type of evidence, the MJ only had one side of the story that she used to convict him.  I probably would have acquitted him because it really sounds like a woman who was scorned decided she was going to make his life hell.
     
    So, will CAAF order a DuBay?  What is the relief?  Is it UCI coming from the TJAG or the deputy?  If he took the action because he was worried about his career, does that make him an Article I(3) accuser because he has a personal interest in the outcome of this trial?  So, if he is an Article I(3) accuser, then was he conflicted from taking action?  And, if he was conflicted, then did TJAG’s improper advice cause Senior Chief Barry prejudice, in which the only reasonable remedy is dismissal of the charges?  Is it prosecutorial misconduct for the TJAG and/or deputy to advise him to consider his own career when taking action that he believes to be warranted?  How many times has this scenario played out in real life, but the influence and impact is unspoken, or lied about? 

  11. Zachary D Spilman says:

    The convening authority didn’t take action on the findings, k fischer. This issue involves the absence of action in a case where there was the discretion to act.

    “Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required.” Article 60(c)(3)(A) (2017) (formerly Article 60(c)(3) (2014)).

    “Action on the findings is not required.” R.C.M. 1107(c) (2016) (unchanged from prior version).

  12. Charlie Gittins says:

    Panel.  He testified on sentencing and gave enough testimony and texture for his counsel to request reconsideration of findings.  When you go judge alone, you have a wild card especially in  120 case because you have no data on the sexual background of the judge — what dark places has that judge been to, etc. 
    The accuser issue is a good one.  In any Navy case, now that the JAG is on record about the politicization of the sex assault arena, I would raise the accuser issue in every case.  DiRenzi’s statements, what happened to Helms and Franklin certainly provides a plausible basis to raise the issue. 

  13. Bionic Barry Dylan says:

    I can’t help but wonder if the powers that be are praying this conviction gets overturned so everyone will forget about it, move on, and not look closely at all the sordid things that apparently went on behind closed doors here.  It sounds like a lot of the closed door conversations in this case are similar to what happened in Wright (USAF), which should have resulted in lots of heads rolling, but since it ended in acquittal nobody seems to remember or care anymore.

  14. k fischer says:

    Zack,
     
    Okay, so he took action by approving the sentence, but took no action with regards to the findings, although your post does say “Lorge approved the findings and sentence.” Wouldn’t “approving a finding” be “taking action” similar to approving a sentence in whole or in part under Article 60(b)(2)?

  15. Vulture says:

    The letter says ” I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartiality of this court-martial.”  Sex of the judge doesn’t matter.  UCI does, a lot.

  16. Zachary D Spilman says:

    You caught my shorthand, k fischer. Though typical Navy practice is to explicitly approve the findings, even though it’s not required. My point was that this issue must be considered in the context of the highly-discretionary nature of the power at stake.

  17. k fischer says:

    Whether or not its a discretionary act of no approving a finding or a mandatory action regarding sentencing, I think it would be considered an action of a convening, approving, or reviewing authority with respect to his judicial acts.
     

    No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence … the action of any convening, approving, or reviewing authority with respect to his judicial acts.
     
    10 U.S.C.A. § 837 (West)

     
    Even if his action of approving findings was purely discretionary and he took no action on findings that he could have taken, wouldn’t advising him that his career would be over an attempt to coerce by unauthorized means the action of the approving authority?  TJAG attempted to create a personal interest in the Court-martial by way of the convening/approving authority’s career, after the convening authority informed her that he wanted to dismiss the charge.  Whether that actually had any effect on the approving/convening authority could be questionable.   Sounds like the convening/approving authority was more concerned about the effect a dismissal of the charge would have on the Navy in general, rather than the effect it would have on the convicted Sailor he believed to be innocent.  Is it an unauthorized attempt to coerce or influence a Convening Authority that if he doesn’t take or takes a certain action that it would negatively affect the Navy by way of Congress? 

  18. k fischer says:

    On second thought, I think CAAF would hold that TJAG telling a Convening Authority that dismissing charges would end your career is not a big deal:
     

    CSM Bates’ alleged admonition to SPC Slack that he was risking his career by supporting appellant is like the first sergeant’s admonition to SFC Penner: we cannot tell whether it was intended to coerce or to be helpful. In any event, we need not decide how it was intended or how it was received, because SPC Slack was not deterred from his efforts.
     
     
    U.S. v. Ayala, 43 M.J. 296, 301 (App. Armed Forces 1995)

     
    I guess Navy TJAG was just trying to be helpful by telling him the truth:  that McCaskill will never confirm him for another promotion.

  19. Chairborne Ranger says:

    So the RADM was concerned about his career prospects if he disapproved the conviction…yet he retired as a RADM.  Sounds like he miscalculated……

  20. J.M. says:

    Assuming that the articles and the affidavit are true, are there any ethics issues with the SJA to a 2 star calling in two 3 stars to influence his decision? The article says advisers, plural, so I assume more then one. What are these advisers doing now? Have any of them become a judge and handled a 120 case judge only? Doesn’t their prioritization of politics vs an individuals guilt raise the potential for bias in all future sex assault cases they are involved in? And what does this mean when the JAG for the Navy has personally intervened to persuade a CA to approve a conviction?   

  21. Atticus Grinch says:

    Why didn’t the accused testify?  That seems very fishy in a case like this.  Also, judge alone?  For reals????

  22. Nick Stewart says:

    Re: the accused choosing not to testify
    I am just a common man, and I am open to being enlightened by those who know better. But the impression I’ve always had about the right to remain silent is that it stands as a citizen’s protection against being made to answer for that which is not true – that which, assuming the most prejudicial and dishonest of circumstances and government charging decisions, is not true and is simply set as a tripwire the accused might be led during cross to stumble over should she choose to testify.
    Without venturing a guess about whether going judge alone was a good call, my humble impression also is that a GCM by MJ alone is a GCM in which the accused HOPEFULLY can be even more certain that the sole trier-of-fact understands and appreciates the right to remain silent.
    IANAL, but I am irked by the common attitude that if you have nothing to hide, then you shouldn’t have a problem answering an allegation. I hear it from people who will go the mat to defend their own 2nd amendment rights but can’t seem to find their car keys when asked to protect someone else’s 5th. It is an attitude that, IMHO, is the opposite of what we swear to do in our oaths.
    When people engage me in amateur conversations about the legal world, I first tell them IANAL. Then I tell them there are “GENERALLY” two reasons not to testify. One is if you are guilty. The other is if you are innocent.

  23. Cheap Seats says:

    So does anyone know why there was a May 5 affidavit?  Was this a motion for reconsideration?  I saw this on CAAF’s New Grants and Summary Dispositions:
    Thursday, April 27, 2017
    Petitions for Grant of Review – Summary Dispositions
     
    No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*
     
    * It is noted that the military judge neglected to seal the transcript of the MRE 513 hearing and some of the associated pleadings, contrary to the requirements of MRE 513(e)(5). Accordingly, the Clerk is directed to seal MRE 513 matters (pages 26-47 and 57-61 and AE V and VIII of the record of trial).

  24. Concerned Defender says:

    Re: the accused choosing not to testifyI am just a common man, and I am open to being enlightened by those who know better. But the impression I’ve always had about the right to remain silent is that it stands as a citizen’s protection against being made to answer for that which is not true – that which, assuming the most prejudicial and dishonest of circumstances and government charging decisions, is not true and is simply set as a tripwire the accused might be led during cross to stumble over should she choose to testify.Without venturing a guess about whether going judge alone was a good call, my humble impression also is that a GCM by MJ alone is a GCM in which the accused HOPEFULLY can be even more certain that the sole trier-of-fact understands and appreciates the right to remain silent.IANAL, but I am irked by the common attitude that if you have nothing to hide, then you shouldn’t have a problem answering an allegation. I hear it from people who will go the mat to defend their own 2nd amendment rights but can’t seem to find their car keys when asked to protect someone else’s 5th. It is an attitude that, IMHO, is the opposite of what we swear to do in our oaths.When people engage me in amateur conversations about the legal world, I first tell them IANAL. Then I tell them there are “GENERALLY” two reasons not to testify. One is if you are guilty. The other is if you are innocent.

    Nick, that all sounds good in theory.  And as a defense counsel I wish it were that simplistic.  But there’s human nature, and then there’s simple math.
    IF someone says you did something, and you testify and say you didn’t then it’s a judgment call because the statements effectively cancel each other, all things equal.  The tie should go to the accused’s favor.  
    I agree that there is a poor perception on the “nothing to hide, so testify,” attitude.  However, IF someone says you did something, and you are silent, then there’s that dangling unrefuted allegation.  Where there are only two people who know what really happened and one says rape and the other says nothing…   Hmmm…. what do you do with that?  Probably gonna end up with the rape conviction.   But there are plenty of tactical reasons to remain silent since testifying can box a person into making criminal confessions element by element.  
    It’s a tough call but in many rape cases especially, since most often only two people know and there’s rarely smoking gun evidence, it really is a contest between a human allegation and a human denial.  If the human doesn’t deny, then you’re left with an allegation and often evidence consistent with it (rape kit, DNA, evidence of sex, with just consent in dispute).  If the finder of fact has only and allegation and no denial, well, easy to see that there’s going to be a conviction.

  25. k fischer says:

    Great conversation about taking the stand.  There’s the way it ought to be.  And, there’s the way it is.  Appellate attorneys are concerned with the former.  Trial attorneys are concerned with the latter. 
     
    Reminds me of this scene, except Elias is the client who got wrongfully convicted, Chris Taylor is the TDS attorney who just came from the Criminal Justice shop and lost his first case with Elias, an innocent man, and SSG Barnes is the burnt out SVP who succumbed to UCI and got Elias convicted.  Imagine that instead of fragging, the attorneys are talking about filing a Bar complaint.
     
     

  26. Nick Stewart says:

    Many thanks for the response, Concerned Defender. You and I wish it were that simple, and I thought it was supposed to be that simple for good reasons beyond the simple, good reasons I have come to understand. It simply protects the citizen from the trap that is set for whomever becomes the object of the latest political or viral vituperation: “I don’t need an allegation against you to be true. I just need you to deny it.”
     
    I am not surprised at the difference between theory and reality as you explained it. But I do believe that difference is a scourge on our reputation of justice, judgment, integrity, and courage. Unfortunately, the difference is evidence of how we have used poor training and the illusion of truth to pollute our population of potential panel members. [The editorial] We as a department can do better at maintaining discipline without sacrificing accessibility to justice.
     
    Guilty or not, accused service members deserve the protections guaranteed by the theories and by the ideals to which we require their loyalty. Ideals is our daily business in uniform, and we as their trusted leaders owe them the moral courage required to promote erasing the difference that you described and that I agree exists. You and I both wish it were as simple as it is supposed to be. It should be that simple, and with conscience at all levels, hopefully it will soon be.

  27. Concerned Defender says:

    Well Nick, I agree.  How to fix it in the military?  Here’s my suggestion to patch it and make it more fare.
    1.  Panels and Judges and Prosecutors that are not in any way in the chain of command of anyone associated with the case. Eliminate every possible influence locally.  Currently, everyone serves under the local CG, normally.
    2.  Require 100% panel vote to convict, like civilian courts.  You many not be aware, but currently it’s basically a 2/3 majority.  There’s a world of difference.  
    3.  More protections for the accused.  Some of the rules of evidence need to be dialed back in favor of an Accused.  Too much garbage in the process.  The military including judges are very pro-prosecution.  Most members of the SJA and Bench served as Trial Counsel, but often not Defense Counsel (anecdotal, I have no facts to support).  

  28. Nick Stewart says:

    Concerned Defender…
     
    Agreed. Although many in the department want to preserve the powers of the convening authority, as a non-practitioner, I do not necessarily disagree with the push from some corners of Congress to reform that part of miljus. I know the effort’s general intent is to eliminate the [erroneously perceived] cavalier attitude on sexual assault, but my narrow vision sees at least the potential for a more fair fact-finding process if that change happens. I could also be wrong. 
     
    As for rules of evidence, I haven’t watched how Congress and the courts have changed and applied 404, 412, and 413 for a while. All I recall from years ago is what seemed like a conveniently contradictory construct that the G used as a blunt instrument to bolster cases offering little or no substance. Hopefully the black-letter law and the case law have started to swing back toward the middle since then.
     
    Outside of an unlikely shift in political will that will change MREs/etc., the one area where I see the greatest need for improvement is where the rubber meets the road – the annual training and the occasional pop up trainings and roadshows in response to recent media coverage. Every potential victim, every potential accused, and every potential panel member attends, and typically those training events rely on an invocation of our heritage and core values – the idea that our men and women will cease committing sexual assault because we have ordered them to be honorable. (I actually witnessed a CG a couple years ago say to our command, “Now this isn’t command influence, but…” – which means it was.) We obviously aren’t getting the results we want; otherwise, we wouldn’t be so upset with the annual reports to Congress (methodology not discussed here). Since the moral approach to a legal issue isn’t working, we should change something. I tried to mention this to the same CG one time…didn’t want to hear me out.
     
    I think a ground-level, positive change will come if we shift the approach from a sermon to a schooling – educating, not berating. Not speaking for the entire department, I cannot recall a sexual assault training I have attended that included a law-school-trained JAG who walked us through 1) the relevant punitive articles, 2) the relevant MREs and how they work in court, and 3) case summaries that illustrate something other than the barroom predator dropping GHB in a drink. For us to acknowledge how serious a problem sexual assault is, and to then offer a command-designated individual to read Powerpoint slides as a solution to that problem is imbalanced. And shying away from acknowledging the dangers of binge drinking with respect to sexual assault because it is considered victim-blaming lacks courage and only further entrenches the problem we want to fix. We don’t decline to teach good ATFP practices because of a fear that we are implying the guilt of a kidnapping victim. We can teach the dangers of binge drinking without absolving a perpetrator and without blaming the voluntarily intoxicated.
     
    The legal content can be complicated, but we need to give our people more intellectual credit in our annual training. A simplified presentation of the law can be understood by everyone. And even if it is too complicated for everyone to understand, “It is too hard,” cannot be our excuse. We can make it a multi-stage, educational process, if necessary, instead of acting as though we can stand in front of our people and fix the issue with a one-time decree: “Thou shalt not sexually assault.” Thanks again for engaging me in the discussion.