In a series of posts (here, here, and here) in May and June we discussed the case 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. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

That fact-finding is underway. According to this report published by the San Diego Union-Tribune, Vice Admiral Crawford (the current JAG) gave a deposition this week and, according to Barry’s civilian defense counsel, “Crawford has confirmed that he discussed the case with Lorge. Crawford also disclosed the existence of documents and messages exchanged at the highest levels of the Navy about Barry.”

But the report also raises a new allegation: that Vice Adm. Crawford pushed for a prosecution in a different case involving the 2016 drowning death of a special operations candidate, Seaman James Derek Lovelace. Barry was also a member of the special operations community, but was not (best I can tell) involved in any way in the death of Lovelace.

The Union-Tribute reports that:

Word that the Union-Tribune had received records in both the Barry and Lovelace cases triggered numerous, sometimes frantic, calls from top Navy officials nationwide on Monday and Tuesday, with flag officers or their representatives inquiring into Crawford’s involvement in both matters.

It’s certainly not unusual for a JAG or other senior military attorneys to get involved in serious cases, to form opinions about whether prosecution is warranted, and to take action consistent with their opinions. Article 34, in fact, requires them to do precisely that. The emerging claim from the Barry and Lovelace cases, however, seems to be that Vice Adm. Crawford has – and acts on – a pro-prosecution bias.

Paradoxically, at the end of the Union-Tribune article that claim is offered as a justification to give lawyers more power in the military justice system:

Eugene R. Fidell, the military law instructor at Yale Law School, said both cases possibly linked to Crawford were very unusual but pointed out the need for broader reforms to the way the armed forces dispense justice.

“These cases illustrate that Congress needs to get serious about the military justice system and turn it from an 18th century system into one fit for the 21st century,” said Fidell. “Military decisions on who gets prosecuted, and for what, are based on a system that was used by King George III. Until that changes, you’ll continue to see controversies like these.”

Fidell has long advocated for lawmakers to strip commanders of the power to decide who is prosecuted, to pick jurors and to vacate verdicts and sentences, vesting charging authority instead with senior attorneys independent of the chain of command and jury selection with an outside and impartial commissioner.

14 Responses to “Developments in the Barry case (that somehow justify giving lawyers more power)”

  1. Defense Wizard says:

    I don’t think it’s entirely paradoxical. Having a commander-advised-by-a-JAG system, where the Commander is subject to pressures that, say, an appointed US Attorney may not face, creates an incentive to prosecutor things based on public pressure and not legal principles.
    Conversely, you have Mike Nifong, an elected prosecutor, who railroaded several Duke athletes for reasons we can only conclude were political.
    Without a policy prescription, such as changing the current system to have charging/prosecution decisions made by appointed, professional (and thus somewhat publicly un-accountable) attorneys, this situation creates a paradox. On the other hand, this creates its own set of problems, however.

  2. Alfonso Decimo says:

    As you say, Vice Adm. Crawford has a duty under Art. 34 to give Convening Authorities an opinion as to whether prosecution is warranted in serious cases. I have yet to read any evidence that he is biased. The more troublesome allegation is that he warned RADM Lorge that disapproving the findings would be bad for his career, since that potentially implicates UCI.

  3. Azimuth says:

    Mike Nifong also was disbarred, and went to jail for a day for contempt, thus held accountable.  The military still operates on a “different spanks for different ranks” mentality.  Crawford will be punished by being allowed to retire at a Flag Rank.  Interesting note the state that disbarred Nifong, North Carolina, is the state that Crawford is barred in.  I’m curious if this information it to them.

  4. Duderino says:

    A lot of these issues would be mitigated by letting civil criminal prosecutors handle all the cases within their jurisdictions instead of the military “good order and discipline” system clunking through them  
    An accused should also enjoy the equal right for a 12 member “jury” requiring a unanimous agreement for guilty verdicts. How this can be constitutional in peace time escapes me. Congress legislation such as the UCMj is still subject to judicial review for constitutionality. 
    It’s just common sense, even if for only political reasons, to avoid the whole potential negative publicity by passing the potatoes to the civillian system when possible. But as with any institution they, are inclined to gain more power and influence to justify their own existence. 

  5. Zachary D Spilman says:

    I see at least three flaws in your reasoning, Defense Wizard:

    First, the idea that military lawyers don’t make charging decisions now is ignorant of the way that charge sheets are drafted. Yes, the commander decides if the case goes forward or not, but the parameters of the case are – as a matter of practical reality – set by the trial counsel or staff judge advocate.

    Second, the idea that a military prosecutor (either a commissioned officer or a separate federal officeholder) would not be subject to the exact same kind of pressures now facing military commanders is nonsensical. 

    Third, we can have policies (like the non-binding disposition guidance required by MJA) (revised Article 33) without radically changing the nature of military justice.

  6. Zachary D Spilman says:

    I agree that requiring unanimity to convict is desirable, Duderino,

    But the 2/3 (changed to 3/4 in the MJA) rule was a compromise that recognized that a non-conviction by a court-martial is an acquittal (as opposed to a mistrial in a civil court). I think that compromise worked well when courts-martial were not generally considered to be the equivalent of a conviction in federal district court. But now that a court-martial conviction bears all of the stigma and collateral consequences of a civil conviction, and the power to reverse such convictions is strictly curtailed, the benefits of unanimous verdicts probably outweigh the costs. 

  7. Defense Wizard says:

    Zach – I don’t think that there is any way to eliminate pressures on prosecutors, and I thought I conveyed that. Elected prosecutors feel pressure to get re-elected and appointed prosecutors want higher office (think Chuck Rhodes in Billions, which isn’t that great of a show, but Paul Giamatti and Damian Lewis are generally worth watching).
    And yes, of course the military prosecutor is the one who is really driving the train on drafting the charge sheet. But in practice, it’s the Commander who prefers charges, even though it can be anyone subject to the code. We still make a big deal about MJ being a “Command” and “good order and discipline” issue.
    I agree that the MJA has a lot of good stuff in there. And I completely agree with your point on unanimous convictions. Shouldering someone with a lifetime of being labeled an ex-con and potentially on the SOR without a unanimous verdict is bonkers, and “expedience” is not a good enough justification.
    Commanders, however, are political animals. They are afraid of inaction, and they are keenly aware of what Congress “wants” them to do.
    Perhaps the question should be, how do we insulate Commanders from having their MJ decisions second-guessed by Congress? Or should we?

  8. Zachary D Spilman says:

    Commanders, however, are political animals. They are afraid of inaction, and they are keenly aware of what Congress “wants” them to do.

    Certainly. But that’s because they’re ultimately responsible for the decision. The same would be true if a chief prosecutor was made ultimately responsible, and we’d be right back where we started.

  9. Azimuth says:

    Yes, SJA’s determine how charge sheets are drafted, however who writes the SJA’s performance report?  The Commander.  How about decentralized SJA/Legal offices, much like ADC’s, that still advise Commanders, however are not rated and possibly influenced by said Commander?
    To insulate Commanders from having their MJ decisions second-guessed by Commander would be to strip of their MJ authority.  However to do so is the $1,000,000 question.

  10. Duderino says:

    Separate the “Good Order and Discipline” system from the justice function.  It is not unprecedented for different departments to transfer functions to one another under Agreement contracts.
    As such Congress could transfer the prosecuting function of the UCMJ to the DOJ. Title 10 military JAGs would be assigned to the DOJ in order to provide “deployable” capable personnel for the prosecuting actions. Appropriate funding would also be transferred to the DOJ.  However, DOJ would maintain prosecutorial discretion, removing it from the Chain of Command and potential UCI issues. Traditional CA actions would be limited to referral of criminal allegations to the DOJ.
    Good Order and Discipline actions would remain within the full scope of strictly MJ and would consist of enhanced Article 15’s and Summary Courts Martial.
    This would provide the tools necessary for the Commanders to maintain actual Good Order and Discipline, the ability for crimes outside of the US and military specific crimes to still be prosecuted.  Also, as an added benefit to JAGs, they would be able to maintain their relationships and experience with civilian justice functions.
    The greatest benefit would be allowing the Military to concentrate resources on Military functions.
    Dreaming big I know, but it seems like a step in the right direction. No more MRE versus FRE.

  11. Alfonso Decimo says:

    I think Duderino’s proposal is excellent! It would also tend to improve the experience level of the litigators. I would add it should create a judiciary like Canada’s Office of the Military Judge. Their judges are drawn from the military and the judiciary is independent and has its own budget.

  12. stewie says:

    For those advocating civilian control of the criminal process, all you are doing is trading one set of problems for another, with ultimately not necessarily an overall improvement for any part of the process.
    Certainly, we could adopt some parts of the civilian system: unanimous verdicts, more randomized panels, etc.
    Best path is to improve the current system IMO.

  13. mathmatical says:

    It’s disingenuous to say the number needed for a conviction is now changed to 3/4.  Panel sizes are made to be 4 for a special or 8 for a gcm.  Ergo – 3/4 or 2/3 is a distinction without a difference

  14. Isaac Kennen says:

    Transferring prosecutorial discretion from one executive branch officer (the convening authority) to another (the judge advocate) would not have any appreciable effect on the occurrence of unlawful command influence.  Either way, the officer exercising the prosecutorial power is entirely dependent on executive branch authorities for their performance rating, assignment, commission, and pension.  
    Regardless of which executive officer is exercising prosecutorial discretion, the firewall between the government and the accused has always been the judiciary and the jury.  We don’t have juries in the military, so the judiciary will have to do.  
    Given that dynamic, it his heartening to see CAAF exercising its prerogative to check the power of the executive, as it did recently in Boyce (CAAFlog case page). It is concerning, though, to that cases like Boyce were not resolved at the level of the trial court, or at least the CCA. The cynic would say that occured because the judges at those levels, though surely men and women of integrity, are not independent of the executive branch in the same way that CAAF judges are.