Senior Chief Barry, U.S. Navy, 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, 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 complete, but CAAF’s action isn’t. Yesterday the court issued the following grant order:

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Upon reconsideration of Appellant’s petition for grant of review, we granted review of the following issue: WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY. We also ordered a hearing in accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). SeeUnited States v. Barry, 76 M.J. 407 (C.A.A.F. 2017)(sum. disp.). The record of that proceeding and the findings and of fact and conclusions of law of the DuBay judge have been returned to this Court. After consideration of the record of the hearing and the findings and conclusions of the DuBay judge, it is ordered that said petition is hereby granted on the following specified issue:

WHETHER A DEPUTY JUDGE ADVOCATE GENERAL CAN COMMIT UNLAWFUL COMMAND INFLUENCE UNDER ARTICLE 37, UCMJ, 10 U.S.C. §837 (2012).

The original granted issue is also modified as follows:

WHETHER MILITARY OFFICIALS EXERTED ACTUAL UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY OR CREATED THE APPEARANCE OF DOING SO.

Appellant shall file a brief on the two granted issues on or before December 29, 2017, Appellee shall file a brief within 30 days of the date of the filing of Appellant’s brief, and Appellant may file a reply within 10 days of the date of the filing of Appellee’s brief. The parties are ordered to file a joint appendix in accordance with C.A.A.F. R. 24(f).*

* Judge Sparks is recused and did not participate.

All of our prior coverage of this case is available here.

13 Responses to “CAAF to take a closer look at the possible (and possibility of) unlawful command influence in the Barry case”

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

    “No person subject to the 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.”  Article 37(a), UCMJ.  Seems the answer is yes, the DJAG can commit UCI.

  2. Zachary D Spilman says:

    The Navy-Marine Corps Appellate Government Division will, of course, cite Article 6(b):

    Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General.

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

    Of course Article 6b does NOT say convening authorities shall communicate directly with DJAG….

  4. Some Guy says:

    The key here is that there are 2 ways to commit UCI.  (1) attempt to coerce; or (2) by unauthorized means influence.  DJAG might not be able to do the 2nd kind of UCI if the communication was pursuant to an authorized means.  But it seems the answer could still be yes to the first kind of UCI.

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

    Well then what does “unauthorized means” mean?  I am not sure this was a  “attempt,” this was successful coercion.

  6. Abe Froman says:

    ZS, 
    What’s your prediction? 

  7. Former DC says:

    Zack,
    It seems there is a fine line between “communicate” and “coerce”.  I can talk to the superior’s judge advocate all day long, and he can give me his advice, but he cannot order me to give certain advice or make threats – veiled or direct – of adverse action if I refuse.  There is even protection for OER/FITREP/etc.  I don’t think Art. 6(b) helps, in light of the Dubay report.

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

    I think the communication is per se “unauthorized.”  No JAG gets to tell a convening authority “if you disapprove the findings and sentence, you’ll put a target on your back,” especially in the context of the Franklin/Wilkerson/Wright fiasco.

  9. Abe Froman says:

    Not to dive back into the great debates from previous forums, but don’t JAGs/SJAs do that all the time?  “Sir/Ma’am, the COA you have chosen to pursue is risky because _______”  Does the rationale behind why it is risky matter so much?  Isn’t that giving professional advice? 

  10. k fischer says:

    Abe, 
     
    Once again, I would say that Navy TJAG was creating, through his advice, a type III accuser in Lorge.  Is that unlawful command influence, i.e. to provide legal advice that would make a Convening Authority concerned for his career.  Well, isn’t that what happened in that AF case that Franklin referred and was dismissed with prejudice for UCI?
     
    In addition, a very subtle argument could be made that TJAG’s advice resulted in Lorge having an inflexible disposition towards sexual offenses.  Because does it really matter who was on the receiving end of the CA’s good graces at action?  I think that whoever was convicted of a 120 offense would have received the same visit and advice from Navy TJAG, i.e. under no circumstances should you order a new trial or dismiss the charges; to do otherwise would be painting a target on your back.  Certainly, that is what the appearance is.

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

    Abe,
     
    It’s one thing to take advice from your SJA, who you outrank, and probably take it with a grain of salt.  Which by the way, CDR Jones was giving incorrect advice.  It’s a whole other ball game when the #2 JAG in the Navy, who is speaking for the Navy, tells you to follow your SJA’s advice (which again is incorrect) and “don’t put a target on your back.”

  12. BDDFC says:

    K Fischer, spot on.  It’s really pretty obvious if you think about it.
    Abe, stick to sausage, pal.

  13. Vulture says:

    Tami, et. al.  Paragraph 2-3 of the Post Trial Handbook states in subparagraph d. Additional defense comment:
    The service and receipt process described above will be repeated if the SJA’s response to a submission by the defense raises new matter such that the defense must be given a further opportunity to comment on the new matter. RCM 1106(f)(7). That is a decision to be made by the SJA, the chief of military justice, or the trial counsel. The requirements for documenting the transmittal, receipt, and return of defense rebuttal are the same as described above. (emphasis added)
    This instruction, as condoned by the JAG, is ripe for abuse in the provision for whatever result the prosecutorial arm wishes it to be.  The SJA can pen over, rebut, or obfuscate entirely without means of redress from the Defense.  You have OTJAG’s then in all three branches of service affecting this kind of dysfunction of the system because they have decided no one is looking.  It seems like then Army Appellate Judge P. Hamm made comment on this in a foot note.
    But its not until a direct action by a DJAG intervening that this kind of foul play is getting the NCAA treatment of Ole Miss.  Chances are, though, it won’t be a staggering rebuke by CAAF.  They have already gone out of their way to side step post trial errors.
     
     
     
     

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