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).

40 Responses to “Chief Trial Judge of the Air Force makes findings in the Barry case”

  1. Cheap Seats says:

    Without the benefit of the full report, do we know what Judge Spath (or any other court, for that matter) made of the fact this case DID go back for a new SJAR and CA Action before NMCCA affirmed?  Accordingly, looks like the paths may be honoring RADM Lorge’s original intent, or finding UCI with no prejudice because it already went back for new CA Action.  Maybe no relief granted.  And what about the fact none of this was covered before AFTER CAAF acted the first time?  On a separate note, it’ll be interesting to see what happens with VADM Crawford.  Does Senior Chief Barry prefer charges against the JAG? (Said with a note of sarcasm.)

  2. Cheap Seats says:

    Disregard the previous post with the exception of the future of VADM Crawford and the first CAAF review.  I can open the full report now. 

  3. Abe Froman says:

    ZS, It’s more than just the SJA was advising to not mess with the findings, it was “more problematic given his SJA’s unyielding(and poor initial advice) when RADM Lorge was trying to assess what action to take in this case.”
    This is not a very flattering read of the Navy JAGC leadership…

     
     

  4. Ryan Coward says:

    I’ve said it before and I’ll say it again.  If this whole system was civilianized, we would not have these problems.

  5. Canary in the Coalmine says:

    Does it matter that there is no Finding of Fact that really links Crawford’s position as CNLSC and Deputy JAG to the positional, legal authority over the GCMCA’s boss?  For there to be UCI, apparent or otherwise, wouldn’t there have to be some positional authority spelled out a bit more?  Or, does being CNLSC suffice? 
     

  6. Brian Bouffard says:

    On a separate note, it’ll be interesting to see what happens with VADM Crawford.  Does Senior Chief Barry prefer charges against the JAG? (Said with a note of sarcasm.)
     

    Someone should, and if I were still on active duty, I would.  No sarcasm.  This is an unmitigated disgrace, capped with (to say it as gently as possible) non-credible testimony under oath from TFJAG.

  7. Bill Cassara says:

    Brian: Interesting question.  If charges are preferred against VADM Crawford, how does the Navy detail someone to represent him?  Wouldn’t every single lawyer in USN be conflicted?

  8. Charles Gittins says:

    Bill:  Do an MOU with the Army or Air Force to provide counsel (trial and defense) and an IO for the Article 32.  I was detailed to an Army case in Okinawa (Gleason) in 1988 based on an MOU between the LSSS and the 10th Army Support Group.  The Army had no control over me.  It was wonderful.  Pete Solecki was detailed as the MJ.
     

  9. Allan says:

    TJAG (or a former TJAG) could represent him.  In the alternative, could they not detail an attorney from the Army, Air Force, or Coast Guard?
    WOW:  “RADM Lorge believed then, and continues to believe, the appellant’s guilt was not proven beyond a reasonable doubt at his court-martial.”  This sounds like a pretty good reason to set aside the conviction.
    On a side note, if the GMCA thinks that there is reasonable doubt and the SJA cannot convince him otherwise, what business does the SJA have advising the GMCA to affirm the findings?  It seems to me that the SJA is taking on the decision-making authority, not giving advice.
    I am further troubled that the SJA did not give correct Article 60 advice.  Sorry, but this seems to be fundamental to the job of an SJA.  Troublesome for the SJA, the DSJA, and the Chief of Military Justice (or whatever the Navy has).
     
     

  10. Bill Cassara says:

    Charlie: As I recall the Navy never had much control of you either. :)

  11. X04 says:

    Neither CNLSC nor the SJA covered themselves in glory here, but frankly I have a much bigger problem with the flag officer in command who admits that he signed off on the conviction of a guy he didn’t believe was guilty.  The “pressure” described in the findings of fact sure doesn’t sound like it should have been enough to overcome the will of a flag officer entrusted with the mantle of command.  If it is, then we have much bigger problems as an organization than the injudicious comments of a senior judge advocate.  That’s the part of all this that shocks me.  Are we missing the point here?

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

    Perhaps a retiree should prefer charges.  After all, retirees are still subject to the UCMJ.  But you would have a heck of a time finding panel members to sit on the case.
     
    I love the “let the appellate courts sort it out” (sarcasm).  Just like the “victim” deserves her day in court, “let the panel sort it out.”
     
    Set aside the findings and sentence, and dismiss with prejudice.  Or send it back for a new action, bring RADM Lorge back on active duty to take final action, and if he wants to set aside the findings and sentence, let him do it.

  13. J.M. says:

    Interesting that the Judge took the time to write “VADM DeRenzi, RADM Lorge, and LCDR Dowling were all credible witnesses in this case.” But there’s no mention of Admiral Crawford, or CDR Jones, Lorges SJA. 

  14. Army Proud says:

    All you Navy “guys” should be ashamed for your service’s behavior here…not only do you have the fruitiest uniforms and fruitiest behavior in general…now you have bona fide UCI…

  15. K fischer says:

    Army Proud, 
     
    At least one GCMCA had the integrity to come forward.  He just happened to be Navy.  I don’t see many Army people coming forward, and it’s not because the Army doesn’t have UCI.  The Army has plenty of this same crap.  I’ve filed two UCI motions in my past two GCMs where the 32 IO recommended dismissal.  
     
    Convening Authorities need to come clean like the victims of Harvey Weinstein’s sexual harassment, but unfortunately the Armed Services are filled with whorish cowards more concerned about their careers than those whom the believe to be wrongly convicted.  Like Matt Damon and Russell Crowe, the SJAs and MJs provide cover.  And like Clooney, Pitt, and Tarantino, the SVPs, TCs, TDS counsel, and CDCs know the system is rife with Nifongian prosecutions, but nobody wants to stick their neck out because nobody wants that target on their back.  So, the sad reality is that all those involved in military justice who profit off the hyper aggressive prosecutorial posture in the military regarding sex offense allegations have less courage than a bunch of Hollywood actresses.

  16. jagaf says:

    Immediate thoughts:
     
    Col Spath is a great judge and its a pleasure to practice before him.
     
    This is definitely not a good look for the Navy JAGC’s senior leadership and I wonder what the response is from those pushing to put JAGs in charge of the military justice system is (if any) to this case, however it shakes out at CAAF.
     
    I not sure what Army Proud‘s insinuations about the collective sexuality/gender identity of the entire Navy has to do with the price of tea in China, but whenever I see things like this, my mind always jumps to Freud. 

  17. Army Proud says:

    jagaf, I’ll sum it up real simple like for folks like you—-fruits gonna fruit….

  18. Army Proud says:

    k fisher, you’ve got to be kidding me…”integrity” to come forward???  After the fact???  That’s not the kind of “integrity” I’m familiar with…and if the problem is so bad in the other services, I’m sure a smart lawyer like you would get your name in the paper or maybe published in a court opinion…how about direct me to some of those articles/opinions???

  19. J.M. says:

    Realistically, what is likely to happen when this goes back to Caaf?

  20. NavyDC says:

    I’m not at all surprised to see this.  The Navy gives lip-service to the MJCLT folks, but everyone knows it’s the oplaw/sja guys that end up getting promoted.  Has there ever been a JAG or DJAG with serious military justice chops?  They all follow the same path: a RLSO/NLSO-now DSO tour that they put behind them as quickly as possible and never look back.  Maybe they do a 2-yr XO or CO tour and it’s back to OPLAW/SJA/OJAG billets.  
    Look at the last 4 JAGs: Macdonald, Houck, DiRenze, Crawford.  They spent 20+ years of their careers as SJA/policy wonks: carrier, OJAG, strike group, oplaw LLM, fleet SJA, Pentagon, brief CO billet, and then back to DC.
    Show me one flag (not a tombstone admiral) in the past 10 years who was a military judge or did trial/appellate work beyond the early O4 level.

  21. Isaac Kennen says:

    A convening authority “is a military officer who as sworn to do his duty under the law, see 5 USC 3331[.] Surrender to such a temptation [as to approve a finding which was not proven beyond a reasonable doubt at trial] would . . . expose these officers to criminal liability under the Uniform Code of Military Justice. See Arts 92(1) and 133, UCMJ[.]” United States v. Mitchell, 39 MJ 131, 144 (CMA 1994).
     
    Rear Admiral Lorge surrendered to that temptation and sent a man he believed to be innocent to prison for three years.  As was previously noted on this blog, Rear Admiral Lorge, as a retiree, remains subject to prosecution under the UCMJ. The Navy’s appellate court recently affirmed that that fact. 
     
    As reported by the Washington Times, Admiral Lorge’s affidavit to CAAF contained this statement:
     

    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. Absent the pressures described above, I would have disapproved the findings in this case.
    * * *
    On a personal note, I would ask you to forgive my failure in leadership and right the wrong that I committed in this case against Senior Chief Barry; ensure justice prevails and when doubt exists, allow a man to remain innocent.

     
    That’s a confession to a crime, in a sworn affidavit, voluntarily submitted to a federal court.
     
     
     

  22. The Weirick says:

    Still not convinced that removing commanders as CAs would destroy good order and discipline. But military lawyers, especially the senior lawyer for the Navy and Marine Corps, lying on the stand and committing UCI to try to save the status quo will asuradly lead to serious changes to the military-justice system. As it should be. 

  23. Abe Froman says:

    Thankfully Harvey Weinstein and Russia have Congress’ short attention span at the moment. And, unless the conviction is dismissed with prejudice from CAAF (unlikely, IMHO), this isn’t the sort of thing that will get too much attention beyond legal wonks. The sailor was convicted after a fair trial. There is nothing I have read that has called in to question the due process rights up to post trial processing   
    I am am a big fan of Spath; he is a smart jurist and a solid officer. It makes his silence re TJAG all the more damning.  

  24. Duppy Conqueror says:

    @ Army Proud- I want to party with you cowboy..
    I have never understood mean spirited inter-service rivalry/jabs. It  seems silly given the majority of SMs from all branches share the common goal to serve and protect the country.   Most smart officers and lawyers understand this simple concept and understand that all branches error at times due to the character flaws and the failings of those in charge. See, Dave Petraeus.

  25. A Random JAG says:

    Another eyebrow-raising line – the footnote about the government appellate attorney who apparently had the fortitude to pass along what he knew to the trial defense team.  Good on him for doing so, although I wonder why no one else felt the need to share the critical information with the defense until it was almost too late.  (Also, very curious as to how the information ended up with him to begin with).  Just a sad story all around.

  26. Burt Bacharach says:

    Navy DC,
     The last and probably only Navy TJAG with more than the first tour military justice experience was Admiral McPherson from the early 2000’s.  Though never a MJ he did a fair amount of mil jus and was TC and DC on two death penalty cases in the latter 1980s.  He was selected as Admiral, if memory serves me right, from TSO East. 
      But that begs the question of whether DJAG and TAG should come from the mil jus community.  As far as promotion goes there are multiple Navy O-6 miljus at the app court and trial courts and sprinkled around.  Being in the track doesn’t hurt promotion, check the latest promotion stats. Should the TJAG be from a small community subset of the JAGC with probably limited experience outside the courtroom? Not sure they should given the wide range of practice the Navy has.  
    You make good points but I don’t take it as far as you do.

  27. Alfonso Decimo says:

    This reminds me of the case of Yeoman Garrett in 1994, in which the Navy-Marine Corps Court of Military Review (as it was then called) did not find the Deputy JAG’s testimony credible.

  28. Allan says:

    Four points on MJ experience for JAG officers (from an Army perspective).
    1.  There are no billets I know of for line prosecutors at the O-5 or O-6 level, and most of the O-4s in MJ are chiefs of MJ. 
    2.  In theory, defense attorneys can be at any level, but rarely are they above O-4.
    3.  Judges seem to be on a separate track.  Once a judge always a judge.  This is kind of important, as one becomes a judge at the O-5 or O-6 level and takes the spot while one’s contemporaries go the SJA track (and meet commanders who can help facilitate promotions).  Truly, if you were the Army Chief of Staff, would you want a TJAG who was never on a general staff, i.e., an SJA?
    4.  Why the focus on MJ at the O-5 and O-6 level?  How many of those officers practice labor law, environmental law, legal assistance…?  The focus is on staff work.  Thus, the way to be promoted to TJAG is with experience as an SJA.  And rightfully so.

  29. k fischer says:

    Navy DC, 
     
    I would hope that even a TJAG with mostly oplaw/SJA experience would understand that informing a Convening Authority to not take an action that is lawful and which the CA believes he should take would be discouraged by Congress and even paint a target on his back is unlawful.  If not, then they need to amend the blocks of instruction involving UCI in Newport, Charlottesville, and Montgomery.  
     
    Army Proud, 
     
    I find that someone who comes forward and admitting they made a mistake when nobody would know about the mistake that was made has quite a bit of integrity.  Not very many people would do that, in my opinion, particularly after what happened to Franklin and Helms, respectively.  He could have easily said nothing, but he did not.  So, yeah, he stumbled initially, but probably did what every Commander with stars on his collar was taught to do: follow the advise of his Judge Advocate.  So, we can debate on whether he HAD integrity before, but he has had integrity ever since the day he admitted his mistake.
     
    As far as my name being in the paper or in an opinion, I’m only one CDC who takes maybe one Court-martial per year.  I probably won’t make the paper, but you might see a book.  But, even with my minimal experience, I have seen cases at the post where I was stationed and still predominately practice where the lawyer mindset made me not so “Army Proud.” For instance:
     
    He could have been like the SJA who recommended referral in a ridiculous GCM that the Article 32 recommended for dismissal who justified in my motion to dismiss for UCI that referral was proper because they could just get a “counterintuitive victim behavior expert to testify about the strange behavior” of the complaining witness.  Who’d they get for trial?  None other than blind expert extraordinaire, Dr. Veronique Valliere. 
    Or, he could have been like the SVP in the same case who told me the Friday before trial that “the only one who should be bragging about a victory in [that] court-martial would be the Government.”  Of course, he did not argue that in his rebuttal argument after his case was decimated by the tsunami of evidence that crushed him and his baby lawyer TC.
    Or, he could have been like the RJAG in the same case who told the RCO (who was also being investigated under a 15-6 at the time of referral) that dismissing the charges in accordance with the 32 IO’s recommendation would not be good for his career.  
    Or he could have been like the TC who talked to me about the case after the acquittal who said, “That case HAD to go to Court-martial because otherwise the complaining witness would have been sitting in Gillibrand’s office the day after she learned the case was dismissed.”  
    Or, he could have been like the TC in a separate case who called me about a case that the previous SVP and TC assured me that no charges would be filed.  She was asking me if I would submit a Chapter 10 request if they preferred charges.  I advocated for my client very zealously, and she admitted, “Look, Mr. Fischer, Congress is giving us pressure to take these cases to Court-martial.”
     
    Now, could be that this one post during this one period of time had bad leadership who fashioned their advice from Crawford’s playbook.  But, I’ve been here since ’02, and I’ve seen good SJA offices and really bad ones.  So, I think there are plenty of Judge Advocates who would advise their Convening Authority to approve findings, in order to preserve their careers and/or appease Congress.  There are some who openly admit they do and see no problem with it, so I think the issue is a bit more pervasive than just one Service’s TJAG.  It would be nice if CAAF could address in very clear and concise language whether or not these considerations at preferral, referral, and/or action are proper.

  30. Duppy Conqueror says:

    Well said, K Fischer.  I am quite sure your comments directed to “Army Proud” will be wasted. Based on AP’s post this is a narrow minded thinker exhibiting schadenfreude at a case embarrassing to the Navy. That does not require a ton of deep thinking.   Of course the Navy is not the only service engulfed in the current knee-jerk hysteria surrounding all things related to sex in the military as your practice indicates.  Unfortunately, recent news indicates this issue is not going away any time soon.
    https://www.usatoday.com/story/news/politics/2017/10/24/generals-sex-misconduct-pentagon-army-sanctions-hagel-gillibrand/794770001/   

  31. k fischer says:

    J.M., 
     
    So, it seems that the MJ determined that actual and apparent UCI was committed.  It also appears that he found Lorge to be credible and excluded Crawford from his list of credible witnesses making him not credible, IAW inclusio unius est exclusio alterius.  And Lorge’s testimony indicates that Crawford advised him to “not paint a target on his back.”  So, you now have a factual finding that supports Crawford creating in Lorge a Type 3 accuser in that he has a stake in the action of this Court-martial and should be disqualified.
     
    So, one of the remedies that Barry could receive is a new action by a convening authority who is not disqualified.  But, does that seem fair to Barry?  Had Lorge not been given the improper advice, it appears he would have set aside the findings and either (1) dismissed because he had reasonable doubt, or (2) ordered a new trial because he believed that Barry did not receive a fair trial from the military judge.  
     
    The actions by the Government, i.e. Crawford, seem very similar to Government counsel in US v. Lewis:
     

    To fashion an appropriate remedy in this case, we must consider both the specific unlawful influence (unseating of the military judge) and the damage to the public perception of fairness. Since the appearance of unlawful influence was created by the Government achieving its goal of removing MAJ CW without sanction, a rehearing before any military judge other than MAJ CW would simply perpetuate this perception of unfairness. Further, even if we wished to consider ordering a rehearing before MAJ CW, that option is unavailable in light of her acknowledgement that the conduct of the SJA “invaded [her] deliberative process” and influenced her specific decision to disqualify herself from this case.

     
    We have long held that dismissal is a drastic remedy and courts must look to see whether alternative remedies are available. United States v. Cooper, 35 M.J. 417, 422 (C.M.A.1992). Dismissal of charges with prejudice, however, is an appropriate remedy where the error cannot be rendered harmless. Gore, 60 M.J. at 189 (holding that a military judge did not abuse his discretion in dismissing charges with prejudice to remedy unlawful command influence).

     
    Having found that the unlawful command influence in this case has not been cured, we cannot let the findings and sentence stand. Although it is drastic, we believe that the only remedy to cure the unlawful command influence in this case is to reverse the decision of the lower court, set aside the findings and sentence, and dismiss the charges with prejudice.

    U.S. v. Lewis, 63 M.J. 405, 416 (App. Armed Forces 2006)
     
     
    So, TJAG, while then DJAG, unlawfully influenced with his bad advice the GCMCA that created in him a conflict, or the appearance of a conflict, that would disqualify him as the CA.  It seems like this mirrors the issue in Lewis, and, if so, would require dismissal of the charges with prejudice.  I imagine that CAAF should find an action before another Convening Authority or a new trial would perpetuate the unfairness of TJAG’s actions.  Does CAAF really want every SJA to feel comfortable advising a Convening Authority who wants to take a favorable action to the accused in such a way that it creates a Type III accuser, thereby disqualifying the very person who wanted to take a favorable action for the accused?

  32. Stephen Wilson says:

    Don’t forget United States vs Salyer. The cure for apparent UCI was dismissal with prejudice. 

  33. J.M. says:

    2 cases listed here showing precedent for dismissal with prejudice for UCI involving judges. Has there ever been a case in the past for UCI on a convening authority? 

  34. k fischer says:

    J.M., 
     
    Closest I could find was:

     
    Specifically, we conclude that members of the public would understandably question whether the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force improperly inhibited Lt Gen Franklin from exercising his court-martial convening authority in a truly independent and impartial manner as is required *253 to ensure the integrity of the referral process. Indeed, we adopt Lt Gen Franklin’s words as our own: “[It] would be foolish to say there is no appearance of UCI.”

    U.S. v. Boyce, 76 M.J. 242, 252–53 (App. Armed Forces 2017), reconsideration denied, (App. Armed Forces June 22, 2017)
     
     
    But, the case was dismissed without prejudice.  And, the facts were a bit different than the facts in Barry in that Franklin likely was going to refer the case notwithstanding the appearance of UCI.  The MJ in Barry’s case found actual and apparent UCI thwarted Barry from having his Court-martial set aside.  Now that he is retired, it seems like it would be an impossibility for him to take a new action.

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

    k fischer,
     
    They could bring Lorge back onto active duty to redo the final action.  But will they?  I think CAAF will give the Navy the choice of remedy–bring Lorge back onto active duty so he can take the action he wanted to take (which should be disapproval of the findings and sentence if he truly isn’t convinced BRD of Barry’s guilt), or CAAF sets aside findings and sentence and dismisses with prejudice. 

  36. K fischer says:

    Tami,  Can they?  I’ve never heard of that happening.  Not saying it couldn’t, but I don’t know what she you can.

  37. AnnoyingProle says:

    This and the Lt. Gen. Franklin action highlight the hazards of CAs having had this clemency power.  A non-lawyer reviewing the case, considering evidence that was either inadmissible or not offered on the merits and second-guessing the finder of fact, is just a recipe for a mess.I’m still at a bit of a loss as to how the findings establish *command* influence by CNLSC onto Lorge.  There’s no indication he was threatening Lorge, outranked Lorge, had influence over Lorge, or was suggesting he would go up to Lorge’s superiors to take action–CNLSC was, at most, saying “hey, that’s a bad idea” and recognized the “pressure on the system.”
    Of course, if that establishes UCI, then wouldn’t some copies of the Washington Post establish UCI?  How aggressively must an SJA hide their head in the sand when advising a Commander?

  38. K fischer says:

    AP,
     
    Crawford did not merely recognize the system having pressure put on it.  He urged a CA not to take an action that the CA wanted to take because of the pressure on the system and he would have painted a target on his back.  But, there appears to be great confusion across the Services whether or not this is a proper consideration to make, so much so that CAAF should probably clearly outline whether it is proper and why or why not it is proper.  My opinion is that this advice creates a conflict in the CA that he is takes an action to protect his career, much like Mike Nifong indicted those lacrosse players in Durham to assist in his reelection.  It would be as improper if an SJA told a CA to dismiss an Article 120 offense because a GCM for sexual assault would make his division look like it was full of rapists.

  39. Sea Lawyer says:

    AP,
    TJAG’s rank and positional authority are factors to consider, but they are not dispositive on the question of UCI.  Under 10 U.S.C. 837, “[n]o person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”  There is no question that TJAG is subject to the UCMJ, and that by engaging in these atypical meetings with CA, influenced his action outside the established process set forth by the RCMs and UCMJ, generally.

  40. Jack says:

    NavyDC, I think part of the reason TJAG is a career SJA JAG is because TJAG is ultimately an SJA billet. They’re advising SECNAV and while the job includes some action on military justice items, that doesn’t seem to be its main thrust. Would someone who’s done 10 or 15 years in litigation and on the bench be as conversant with the bulk of the duties of the job that don’t have anything to do with the UCMJ, MREs and RCMs?