Argument Preview: Was the convening authority’s action tainted by unlawful influence, in United States v. Barry
CAAF will hear oral argument in the Navy case of United States v. Barry, No. 17-0162/NA (CAAFlog case page), on Thursday, March 22, 2018, after the argument in Kelly. Two issues question whether unlawful influence tainted the convening authority’s approval of the findings and sentence:
Specified issue: Whether a Deputy Judge Advocate General can commit unlawful command influence under Article 37, UCMJ, 10 U.S.C. § 837 (2012).
Granted issue: Whether military officials exerted actual unlawful command influence on the convening authority or created the appearance of doing so.
Senior Chief Special Warfare (E-8) Barry was convicted of sexual assault in violation of Article 120(b) and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Lorge – approved the findings and sentence as adjudged, but the case was returned for a new action because Lorge’s Staff Judge Advocate erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence (based on the SJA’s reading of ALNAV 051/14, which I dissected here).
Lorge then took a closer look at the case, and he began to doubt the findings. He thought about reversing the conviction (a power he had in this case). But Lorge’s SJA advised against it. So Lorge reached out to then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (JAG) of the Navy and with whom Lorge had previously served. Crawford later became the JAG – a position he still holds – and was promoted to Vice Admiral. Accordingly to Lorge, Crawford advised Lorge against reversing Barry’s conviction.
Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at the rank of E-7. Then – in an unusual move – Lorge added the following language to his convening authority’s action:
In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence.
Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartially [sic] of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge[.]
Appellant’s Br. at 2 (marks in original). On appeal, the Navy-Marine Corps CCA affirmed the findings and sentence, rejecting four assignments of error. CAAF summarily affirmed on April 27, 2017.
But after CAAF acted Lorge provided an affidavit to Barry’s defense counsel claiming that he didn’t believe the evidence proved Barry’s guilt beyond a reasonable doubt and he wanted to disapprove the findings of the court-martial, however he did not do so because of pressure based on the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure is said to have been Lorge’s discussion of the case with Crawford. Barry’s defense asked CAAF to reconsider its action, and CAAF ordered a post-trial fact-finding hearing to investigate the affidavit. The Chief Trial Judge of the Air Force presided over the hearing and then issued findings late last year (discussed here).
CAAF then ordered briefs filed on the issues shown above that functionally ask a single, two-part question: Could Crawford (then the DJAG) unlawfully influence Lorge, and if so then did he?
The Navy-Marine Corps Appellate Government Division concedes that Crawford could unlawfully influence, but argues that he didn’t actually do so (and that CAAF should reverse its jurisprudence permitting reversal of a conviction based only on the appearance of unlawful influence). In its brief, the Government Division’s brief writes:
The first specified issue is non-justiciable—the United States concedes that the Deputy Judge Advocate General could in some situations, theoretically, commit unlawful command influence. See Article 37, UCMJ. But as demonstrated, infra, no such situation arises here.
Ruling on the issue would thus require an advisory opinion.
Gov’t Div. Br. at 21-22. This concession likely means CAAF will answer the specified issue in the affirmative, but the Division’s argument that doing so would be an advisory opinion borders on nonsensical. CAAF can’t determine if Crawford committed UCI unless it first determines that Crawford could commit UCI.
The question of whether Lorge’s action was tainted by unlawful influence (and whether Barry is entitled to reversal of his conviction or merely a new action by a different convening authority who might simply affirm the conviction) is more complicated. Barry’s brief is 56 numbered pages long, but the statement of facts section runs from pages 3-37. The Government Division’s response also contains a lengthy (though not quite as long) recitation of facts. Neither recitation is even the slightest bit objective. For example, Barry’s statement of facts includes the following about a meeting between Lorge and Crawford:
RADM Lorge couldn’t recall who brought up SOCS Barry’s case, but he testified he believed that he did. “The real question I had is—is based on the gumbo I had going so far, and that was, you know, disapproving a sexual-assault case, you know, is that going to bring big scrutiny upon the Navy.” “And he told me yeah.” Based on VADM Crawford’s advice, RADM Lorge believed he needed “even more than” reasonable doubt to disapprove SOCS Barry’s conviction. “[M]y feeling as I come out of this meeting with him is ‘yes, the pressure is still there, and it’s intense, and it needs to be done correctly[.]” RADM Lorge left the meeting convinced “folks are going to be looking over your shoulder like—everywhere[.]”
The military judge found, “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 told his Deputy SJA, LCDR John Dowling, about VADM Crawford’s comment about putting a target on his back, “close in time” to the meeting between the flag officers. In weighing the evidence concerning VADM Crawford’s statement to RADM Lorge, the military judge found, “LCDR Dowling was surprised by the content of the discussion which is why the comments were so memorable to him.”
VADM Crawford testified that he did not provide RADM Lorge with any advice. And he denied telling RADM Lorge not to put a target on his back. VADM Crawford testified he had no reason to say that. He also denied discussing the political climate surrounding sexual assault cases, testifying “political consequences” are not “part of my decision matrix.” Contradicting VADM DeRenzi’s testimony, VADM Crawford even went so far as to say the Navy was under no political pressure with respect to military justice.
App. Br. at 18-19. While the Government Division’s statement of facts includes that:
K. Not fearing personal or professional repercussions, RADM Lorge approved the Findings and Sentence consistent with the advice of his Staff Judge Advocate.
RADM Lorge determined that approving the findings and sentence was the right action in Appellant’s case, but he did not make this decision because of something VADM Crawford or VADM DeRenzi did. (J.A. 599, 1077.)
RADM Lorge had no “fear that if [he] did not take action, [he] would be punished or [he] would not promote.” (J.A. 1065, 1076.) RADM Lorge understood the scrutiny against the military-justice system to be separate from any personal scrutiny. (J.A. 1066.)
But RADM Lorge knew that if he disapproved the findings he would need to be prepared to explain why, but he would not be professionally harmed. (J.A. 1066.) He believed that if he disapproved the findings, it would adversely affect the Navy, and his consideration of the Navy’s interests contributed to his decision not to disapprove the findings. (J.A. 407.)
Gov’t Div. Br. at 17-18 (emphasis in original).
The question of whether Lorge’s action was tainted by unlawful influence is also, of course, fact-dependent, and so the absence of a consistent narrative about what happened puts CAAF in a difficult position. Before the court can apply the law, it must first arbitrate the factual dispute between Barry and the Government Division about what actually occurred during the post-trial processing of this case.
But applying the law won’t be easy either. Barry’s brief asserts:
The military judge below concluded “[a]ctual or apparent unlawful command influence tainted the final action in this case.” Absent pressure from VADM DeRenzi and VADM Crawford, “RADM Lorge would have taken different action in the case, likely ordering a new trial.” In fact, RADM Lorge testified, after reviewing the record of trial, he was inclined to disapprove the findings. Accordingly, actual unlawful command influence tainted the approved conviction in SOCS Barry’s case and dismissal with prejudice is required to remedy it.
App. Br. at 45 (emphasis added). Pressure, however, is a remarkably slippery word in this context, particularly considering that Lorge was the one who reached out to Crawford. If Crawford somehow influenced Lorge’s decision, that influence was not necessarily unlawful.
The Government Division’s brief emphasizes this point:
Appellant makes no effort to address his initial burden to show some evidence of unlawful command influence. (Appellant Br. at 45-51.) Appellant merely repeats the Military Judge’s conclusion that “RADM Lorge would have taken different action in the case, likely ordering a new trial.” (Appellant Br. at 45). But Appellant cites no authority, offering no “more than mere allegation or speculation” to suggest that improper influence was the proximate cause of RADM Lorge’s difficulty choosing what action to take. Salyer, 72 M.J. at 423.
Gov’t Div. Br. at 33. The Division also argues that a deputy JAG (Crawford’s position at the time) does not exert unlawful influence when he merely advises a commander to follow the advice of the commander’s staff judge advocate:
Appellant further fails to explain how the Deputy Judge Advocate General or Judge Advocate General of the Navy can commit unlawful command influence over someone outside their chain of command. As discussed supra, an individual must operate with the “mantle of command authority” to commit unlawful command influence. So too, the Deputy Judge Advocate General, exercising his Article 6, UCMJ, authority—and instructionally reminding another Rear Admiral of his duties under Article 6, UCMJ, to talk to his Staff Judge Advocate—is both allowed under Article 6, UCMJ, and an exception to unlawful command influence under Article 37, UCMJ.
Gov’t Div. Br. at 33. Whether Crawford really did just “instructionally remind another Read Admiral of his duties,” or whether he did something more, is one of the factual disputes CAAF must resolve, but the fundamental premise of the Government Division’s brief is that “routine meetings and casual conversation between flag officers in separate commands – or between the Deputy Judge Advocate General under Article 6, UCMJ, and another Rear Admiral – do not constitute unlawful command influence.” Gov’t Div. Br. at 34.
The Government Division also takes aim at one of the more explosive allegations in the case – that Crawford told Lorge that Lorge would put a target on his own back if he disapproved Barry’s conviction. The Division argues:
To demonstrate actual unlawful command influence, Appellant relies on the Military Judge’s finding that RADM Lorge was left with the impression that not affirming the Findings and Sentence in Appellant’s case would “put a target” on his back. (J.A. 599; Appellant Br. 47.) But this comment was unsupported by the two participants to the conversation. VADM Crawford testified that he did not make that statement. (J.A. 773, 802, 825.) And RADM Lorge testified he did not remember VADM Crawford making that statement. (J.A. 1064-65.)
There is no evidence of this statement other than LCDR Dowling’s hearsay testimony and LCDR Dowling’s Declaration making, again, the hearsay assertion that RADM Lorge told LCDR Dowling that VADM Crawford said not to “put a target” on his back, or something to that effect. (J.A. 395, 919.)
But more importantly, there is no evidence RADM Lorge was left with this impression.
Gov’t Div. Br. at 35. The record, however, seems to be far less clear. Barry’s reply brief asserts that:
RADM Lorge, while he could not remember the precise words used by VADM Crawford, testified VADM Crawford said something to that effect. LCDR Dowling testified that he remembered the precise words. “[W]hat I do remember 100 percent was the ‘target on my back’ comment[.]” RADM Lorge’s decision to approve the findings after the meeting surprised LCDR Dowling, as did “the content of the discussion, which is why the comments were so memorable for him.”
Reply Br. at 9-10.
It’s hard to predict which way this lack of clarity will cut.
Barry’s brief also argues that there is an unresolved appearance of unlawful influence; an issue that led to a dramatic reversal last year in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page), and contributed to influence becoming the #5 Military Justice Story of 2017. Barry’s appearance argument, however, is brief and conclusory:
Moreover, there is no evidence that the government can provide to change the fact that RADM Lorge planned to disapprove the findings before his meeting with VADM Crawford, and then decided to approve SOCS Barry’s conviction only after the April 30, 2015 meeting.
App. Br. at 49. As with the assertion of pressure discussed above, the mere fact that Lorge changed his mind after discussing the case with Crawford does not necessarily mean that Crawford improperly influenced Lorge.
The Government Division has a more nuanced approach:
Here, the predicate facts involve: (1) a Convening Authority confused about the scope of his powers and having great difficulty finalizing his decision; (2) a Staff Judge Advocate providing consistent advice to the Convening Authority to approve the Findings and Sentence; (3) an exceedingly complex Record of Trial; (4) a military-justice system and sexual-assault prosecutions that are under great scrutiny from Congress, the President, leadership, the media, and the public; and (5) a case that directly implicates all those sources of scrutiny.
Appellant, and the DuBay Judge, argue that the information given to RADM Lorge was improper. But the communications to “rely on your Staff Judge Advocate” were not only proper, they were part of the Deputy Judge Advocate General’s duties to ensure military justice was being correctly conducted.
Gov’t Div. Br. at 46-47.
The division also asks CAAF to reverse its precedent regarding the mere appearance of unlawful influence as an error:
Apparent unlawful command influence is thus a judicial creation based on “the spirit of the Code” rather than the text of Article 37, UCMJ, as passed by Congress and signed by the President. . . .
Further, internal debate at this Court has highlighted the problems with this judicial creation. . . .
Apparent unlawful command influence precedent should be overturned as already impliedly overturned in and violation of Vazquez. This case should only be reviewed for actual unlawful command influence.
Gov’t Div. Br. at 43-44. That seems unlikely considering that just last year a majority of CAAF agreed that:
Congress and this court are concerned not only with eliminating actual unlawful command influence, but also with “eliminating even the appearance of unlawful command influence at courts-martial.” United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979)…. [T]he “‘appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial.'” Simpson, 58 M.J. at 374 (quoting Stoneman, 57 M.J. at 42-43). Thus, “disposition of an issue of unlawful command influence falls short if it fails to take into consideration … the appearance of unlawful command influence at courts-martial.” Id.
United States v. Boyce, 76 M.J. 242, 248 (C.A.A.F. 2017) (quoting United States v. Lewis, 63 M.J. 405, 413 (C.A.A.F. 2006)). Reversing a court-martial conviction based on merely the appearance of unlawful influence is neither novel nor strange. Rather, in a system lacking many of the normal protections of American law (and that was created in response to public outrage over the way servicemembers were disciplined by their commanders), it’s wise to be concerned about appearances. Furthermore, were CAAF to accept the Government Division’s suggestion and suddenly reverse course, that would create other issues of appearance: the appearance of a court that can’t make up its mind.
• NMCCA decision
• Blog post: Retired Admiral wishes he had disapproved a conviction when he had the chance
• Blog post: More on Unlawful Command Influence Affidavit at CAAF from Retired Navy One-Star
• Blog post: Retired Admiral will get to testify about the conviction he wishes he disapproved when he had the chance
• Blog post: Developments in the Barry case (that somehow justify giving lawyers more power)
• Blog post: Details trickle out of the DuBay hearing in the Barry case
• Blog post:
Chief Trial Judge of the Air Force makes findings in the Barry case
• DuBay findings of fact
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview