We’ve been watching 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. Prior posts are herehere, here, and here.

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.

Rowan Scarborough of The Washington Times reports here on that fact-finding hearing:

A retired Navy admiral who accused the service’s top lawyers of improperly intervening in a SEAL’s sexual assault case made his charge to a judge this week at a special hearing ordered by the military’s highest court.

Retired Rear Adm. Patrick J. Lorge testified in a Washington Navy Yard courtroom that a lawyer admiral — Vice Adm. James Crawford, now the judge advocate general of the Navy — urged him not to overturn the conviction of Senior Chief Petty Officer Keith E. Barry.

. . .

Mr. Lorge testified that Adm. Crawford told him that overriding the military judge’s guilty verdict would harm the Navy politically. On the stand, Adm. Crawford acknowledged he spoke with Mr. Lorge but denied he did anything improper.


21 Responses to “Details trickle out of the DuBay hearing in the Barry case”

  1. Duderino says:

    In re: the Navy’s standby to the article that they are still committed to pursuing justice….. umm no you’re not. That’s what this case is all about. 
    There is no justice under the true definition of the word for Barry.  What we should be pondering is if the Navy can still operate the MJS without oversight & what the process should be for sleeting a panel of members decide appropriate compensintory restitution and punitive amounts for Barry.  
    And of course duting the investigation Crawford shouldn’t be assigned to administrative duties. 

  2. Anon says:

    And file a complaint with the North Carolina Bar against Crawford.

  3. Alfonso Decimo says:

    I wonder why the Washington Times needed to rely on a press release from the civilian defense attorney. Is a DuBay hearing not open to the public? 

  4. Scott says:

    It seems like there’s an increasing chorus of reporters complaining about the lack of transparency in the MJ system (among the small handful of reporters that care about such things – maybe more of a quartet than a chorus).  But in reality almost every proceeding is open and it’s not difficult to get on most bases.  Even still, reporters often don’t bother to show up, even for cases they are covering.
    Certainty there could be improvements, like moving towards a PACER-type system (as Wyrick is always saying), but in terms of access to hearings, it’s really not that hard in the vast majority of cases.  There are a few exceptions, for good reason, when a hearing is held on a higher security base (the hearings are still open, but just getting on to base can be challenging), but that’s the exception rather than the rule.  The vast majority of bases allow almost anyone to come on with an easily-obtained pass.

  5. TC says:

    No justice under the true definition of the word for Barry?  He had a trial, and an automatic appeal.  All the judges involved were convinced of his guilt.  I’d say by most definitions that’s justice being done.  If the JAG improperly influenced the CA’s decision, the court will fashion a remedy.  But the CA was certainly in no better position than the trial judge or CCA judges to make a determination whether Barry was guilty.  And if the trial had been a couple of years later, his opinion wouldn’t have mattered anyway.  So say what you will about the JAG’s possible inappropriate actions, but it’s going too far to say that there’s no way Barry did or can still receive justice.

  6. CorsairF4U says:

    I’d say Barry did have his day in court and got all the justice he deserved.  Seems to me you (and Anon) have a hard-on for Admiral Crawford.

  7. Anon says:

    Can anyone who was actually at the hearing confirm the summary of testimony from the Times article?  Did Lorge really testify that he thought Barry was innocent?  Did Lorge really say the Admiral said the Navy would be politically harmed?  I don’t know if it’s the wording, or the fact pattern, or what, but those points in the article seem strange.  

  8. Hack Mebolsov says:

    As long as transgenders can serve in the military….that’s what’s really important.

  9. J.M. says:

    Is it common for a DuBay hearing to require a judge from a different service then the accused?

  10. Bill Cassara says:

    JM: Not at all common.  Obviously the presence of Navy TJAG is what triggered it in this case. Col Spath is a straight shooter.

  11. AF Capt says:

    J.M.: No.  But given that the Navy TJAG is the potential troublemaker, they most likely wanted to move it outside of his supervision.

  12. k fischer says:

    Not generally, but I would posit that it’s common for a DuBay hearing to require a judge from a different service than the accused where the Accused’s TJAG is accused of inappropriate conduct.
    I’d like to read the transcripts of the hearing before I decide how offended I am.  The Washington Times article about TJAG’s testimony taken from the defense attorney’s press release doesn’t help me make an informed decision, although I would more likely trust Mr. Sheldon’s press release if I could find a copy of it to read for myself.  He’s definitely stumbled upon something that appears to be a bit more difficult to sweep away than say POTUS’ UCI.  
    Crawford advising Lorge that overriding the MJ’s decision could make the Navy look bad is not as offensive as him advising Lorge that it could end his career.  But it would be about as offensive as DA Marilyn Mosby arguing to a Baltimore Jury that they should convict Officer Goodsen for Freddy Gray’s death to avoid a riot.

  13. Brian Magee says:

    In this case, CAAF disqualified the entire Department of the Navy when it issued the Dubay order.  From the order:

    The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps.

  14. Salty Seaman says:

    These are sad times for the Navy, gents.  Basic mariner skills are lacking.  We keep pumping seamen through the system, but nothing good seems to be coming from those efforts.  Now this UCI debacle.  At least we have more transgenders headed our way.  That should be a much-needed boost for morale for the short term.

  15. nm says:

    Corsairf4u – to quote Clint Eastwood, “deserve’s got nothing to do with it.” This case is about more than one person’s trial.  It is about nothing less than the legitimacy of our justice system. Flippant assertions about whether or not one believes this particular individual “deserved” a completely fair process or only a mostly fair process will not solve this issue.

  16. DCGoneGalt says:

    Hey, everyone, “Salty Seaman” said “We keep pumping seamen through the system, but nothing good seems to be coming from those efforts.”

  17. stewie says:

    Yes, and then he mentioned transgenders for literally no reason at all. I have to ask what his obsession with transgenders (and seamen) is.
    (The degree to which otherwise intelligent people lose their minds about transgender people is both amusing and baffling to me)

  18. DCGoneGalt says:

    Yes, it was a random comment.  However, to the flip side of your commentary one could also say (apparently at risk of having this post shut down) that otherwise intelligent people indulging someone’s fantasy that they are something they are not is also both amusing and baffling.

  19. Tami a/k/a Princess Leia says:

    Reading through all the drunk sex cases on CAAFlog and came across this gem from kfischer on 30 December 2015:

    I like that Montalvo kid.  He’s a straight shooter.  The only way that I would somewhat understand some of the stupidity I’ve seen personally, in appellate opinions, and in the news lately, is if all the bigwigs in each JAG Corps got together and said, “Look.  McCaskill is using one yardstick to measure us and half of that yardstick is ‘more prosecutions.’  So, lets give that clueless oxygen thief what she wants.  Let’s prosecute everyone, no matter how absurd.  In fact, the more absurd, the better.  And when there are enough men who are innocent who stand up and say, ‘We aren’t going to take it anymore!’ and they have a bunch of Congressional Hearings and drag us to Capitol HIll to explain some of the idiocy, we can look them in the eye and say, ‘Well, we were just doing what we were told.’”

  20. Zachary D Spilman says:

    And, Tami, I’ll say now – as I said then – that nobody ever went to the gallows for just doing what they were told. 

  21. stewie says:

    One could say anything DCGG by stringing words together to form a sentence…which you most certainly just did. :)