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. All our coverage is available 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 by a military judge from a different service. Air Force Military Judge Colonel Vance Spath, who is Chief Trial Judge of the Air Force, got the assignment.
Judge Spath’s fact-finding is now complete, and the Washington Times publishes it here.
The findings of fact include that the former Judge Advocate General of the Navy – Vice Admiral DeRenzi – discussed political pressure related sexual assault issues during a telephone call with the convening authority on February 19, 2014:
VADM DeRenzi discussed with RADM Lorge the fact that RADM Lorge and other commanders were facing difficult tenures as convening authorities due to the political climate surrounding sexual assault. She told RADM Lorge that every three or four months decisions were made regarding sexual assault cases that caused further scrutiny by Congress and other political and military leaders. She also told RADM Lorge that a good deal of her time was being taken up with testimony and visits to both Capitol Hill and the White House.
This meeting occurred well before the subject case involving this appellant. VADM DeRenzi was not making any effort to influence (whether lawfully or unlawfully) any action in the appellant’s case or any other case currently pending before RADM Lorge. VADM DeRenzi was simply discussing the realities of the current environment in which she and commanders were operating at the time, particularly in relation to sexual assault.
Findings at 2. They also include that the convening authority’s staff judge advocate strongly encouraged the convening authority to approve the findings and sentence:
Throughout this time, CDR Jones was advising RADM Lorge to affirm the findings and sentence in the case. CDR Jones strongly, and on multiple occasions, advised RADM Lorge not to set aside the findings or sentence in the case or order a retrial. CDR Jones reminded RADM Lorge of the political pressures on the system and that RADM Lorge should not make a political decision, but rather leave that to the appellate courts that would hear the appellant’s case.
Findings at 3.
But a third player emerges. Then deputy JAG (who is now the JAG) Vice Admiral Crawford met with the convening authority:
On 30 April 2015, VADM Crawford, then a RADM and the Deputy Judge Advocate General (DJAG) of the Navy, met with RADM Lorge in RADM Lorge’s office in San Diego. While he is referred to as VADM Crawford in the findings of fact; he was a RADM at all times relevant to the case at hand.
While it was a courtesy visit and the appellant’s case was not the sole matter of discussion, the appellant’s case was a portion of the purpose for the meeting. Additionally, VADM Crawford knew prior to the meeting that RADM Lorge wanted to talk about a particular case.
RADM Lorge told VADM Crawford he was having trouble taking action in the appellant’s case and that he was struggling with the decision. VADM Crawford told RADM Lorge that RADM Lorge had smart lawyers so let them figure it out. Importantly, CDR Jones was strongly and contemporaneously advising RADM Lorge to approve the findings and sentence in the appellant’s case. CDR Jones was, contemporaneously, also telling RADM Lorge he could not order a new trial for the appellant.
Additionally, during this meeting, VADM Crawford either told RADM Lorge “not to put a target on his back” or, by similar comments, left RADM Lorge with the impression that not affirming the findings and sentence in the appellant’s case would put a target on RADM Lorge’s back. RADM Lorge, close in time to this meeting, told LCDR John Dowling, the Deputy SJA, about the meeting and the comment about putting a target on RADM Lorge’s back. LCDR Dowling was surprised by the content of the discussions which is why the comments were so memorable for him.
RADM Lorge does not remember the specific comment about putting a target on his back. VADM Crawford denied making the comment. RADM Lorge said if the statement was made he would have taken it as a joke. However, RADM Lorge did believe he received legal advice from VADM Crawford and that approving the findings and sentence was the right answer in the appellant’s case.
Findings at 3-4. Judge Spath adds that:
RADM Lorge believes he was provided legal advice by VADM Crawford in both the in-person meeting and in the course of the telephone meeting.
Findings at 4. Judge Spath also finds that:
VADM DeRenzi, RADM Lorge, and LCDR Dowling were all credible witnesses in this case.
Findings at 6. Conspicuously absent from this list is Vice Admiral Crawford.
Judge Spath ends with a few observations, and a pretty significant contradiction:
While this trial judge does not presume to advise the C.A.A.F. on whether this amounts to unlawful command influence, this court would offer a few observations it perceives as important:
a. RADM Lorge did not take the action he wanted to take in this case;
b. RADM Lorge was influenced by conversations with senior military leaders; specifically VADM DeRenzi and VADM Crawford when taking action in this case;
c. No evidence was presented during the hearing that there were any issues with the referral decision in this case;
d. The defense team (demonstrating their skill and competence) made an effort to relitigate or demonstrate facts for appellate issues already resolved in this case, and, this trial court is focused on the particular issue presented;
e. While the appearance and timing of the “detailing” issue for defense counsel may have appeared problematic; this issue was resolved immediately at the beginning of the initial hearing. This trial judge simply denied the government motion and allowed the appellant to select his defense team. The appellant did so. The defense team performed during the hearing in a manner that suggested they felt no undue pressure on them from anyone at all. If this were a trial issue, even if there was some type of undue command influence, it was resolved by the specific relief ordered, i.e., the appellant’s defense team remained intact. CAPT House said the same during his testimony.
As the judge who conducted the DuBay Hearing, it appears the final action taken in this case is unfortunate as it does not engender confidence in the processing of this case or the military justice system as a whole.
Actual or apparent unlawful command influence tainted the final action in this case. It did not affect the trial or the referral decision. At the very least, if this were a trial court decision, a new final action would be ordered in this case, or the stated desires of the original GCMCA would be respected and a new trial ordered.
Findings at 8-9 (emphases added).