Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Burris, No.17-0605/AR (CAAFlog case page): Oral argument audio.

United States v. Barry, No. 17-0162/NA (CAAFlog case page)Oral argument audio.

United States v. Armstrong, No. 17-0556/AR (CAAFlog case page): Oral argument audio.

United States v. Kelly, No.17-0559/AR (CAAFlog case page): Oral argument audio.

10 Responses to “CAAF Argument Audio: Burris, Barry, Armstrong, and Kelly”

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

    Judge Ryan threw a bone to Appellant in the Barry case in asking:  “Can the SJA commit UCI in giving the CA wrong advice to influence the CA’s decision?”  The answer is YES!

  2. k fischer says:

    The relevance of Admiral DeRenzi’s comments regarding political pressure seems to corroborate the assertion that Admiral Crawford’s advice was such that Lorge took it that a target would be painted on his back if he dismissed the charges.  Perhaps her statements were not UCI, but it shows the mindset of the senior ranking Department of the Navy’s lawyer and her office, which included her Deputy.
     
    Regarding the question about whether the Deputy TJAG can commit UCI, SJA’s act with the mantle of command authority.  United States v. Kitts, 23 M.J. 105, 108 (CMA 1986)  So, an SJA can most certainly commit UCI.  For instance, the Commandant of the Marine Corps says to his Judge Advocate, “I don’t want any more of my Commanders dismissing charges at clemency.  Gillibrand is wearing me out!”  His Judge Advocate makes a call to the SJA’s under his supervision and lets them know that they are not to dismiss any more charges at clemency.  This is an inflexible disposition towards offenses, and when the SJA relays that comment to a CA who wants to grant clemency by way of dismissal of charges, then the SJA has committed UCI.  In Barry’s case, it was the Deputy to The Staff Judge Advocate of the Navy who acted under the mantle of Command authority by unlawfully influencing Lorge by making him a type 3 accuser with his advice.  It seems like there was a policy put out by TJAG that CA’s will not dismiss charges at action because of political pressure.
     
    Sending this case back for a new trial cannot cure what would have happened at action, but for the unlawful advice, which is that the charges would be dismissed.  “Don’t paint a target on your back” indicates that Admiral Lorge even if he were about to retire, could face some sort of adverse consequence, not necessarily his promotion.  Even if that had come through the SJA, it still would have been UCI because an SJA acts with the mantle of command authority.

  3. k fischer says:

    I’m I correct in assuming that the Government Appellate Counsel who stated she had no concern with the interests of the Navy is a Marine Judge Advocate?  If so, that was classic!

  4. JBF says:

    Yes, k fisher, she is a Marine, and it was possibly the best line of the entire day.

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

    A few observations:
     
    1.  Kudos to Zach for giving extremely polished arguments in both Burris and Kelly.  I have to say wow, especially with the shift so he had to argue two in one day.
     
    2.  Is there UCI in Barry?  Heck yeah!  The conversation between DJAG and Lorge is UNAUTHORIZED!  This isn’t two buddies getting together for a beer after work.  These are two flag officers conducting OFFICIAL business to discuss a specific case that Lorge is going to take OFFICIAL action on.  This topic is UNAUTHORIZED.  And then to discuss what will happen to the Navy if Lorge disapproves the findings is UNAUTHORIZED.  DJAG is NOT AUTHORIZED to give legal advice to Lorge about this case!  And DJAG telling him to talk to his SJA who is giving wrong advice to prevent Lorge from disapproving the findings is just as bad as the SJA giving wrong advice.
     
    3.  It was absolutely incredulous for the government to argue that Lorge could have still approved the findings even thought not convinced of Barry’s guilt beyond a reasonable doubt.  Just.  Wow.  One way or another, I see a win for Barry.  Sometimes, concession is the better part of valor.
     
    4.  Regarding the Kelly case, Congress didn’t intend to limit CCA authority to reduce sentences at all.  If Congress wanted to amend Article 66 to remove ability to disapprove or reduce a mandatory discharge, Congress could have when it amended Article 60, but it didn’t.  Congress imposed the mandatory DD/dismissal NOT because it wanted these discharges executed, because that can’t happen until appellate review is done.  Congress amended Article 60 to guarantee review of these cases by Article 66 JUDGES who have the legal training and experience to make the decision to overturn these convictions and sentences, NOT convening authorities.  That was their beef–they wanted legal people making these kinds of decisions, not non-legal people.
     
    5.  The change to Article 60 has no impact on the CCAs’ ability to exercise their legal authority to reduce a sentence for sentence appropriateness.  CCAs were always able to do that independently of the action convening authorities took prior to the Article 60 amendment.  The only constraint on CCAs is they need legal justification.  
     
    6.  Zach’s point about we need to continue giving individualized consideration in sentencing is well taken.  Sentencing is about the individual as well as the offense.  All sexual assaults are different too.  Drunk sex should not be subject to the same punishment as a brutal rape, the CCA should be able to adjust for that.  The CCA should also be able to adjust for a combat vet with TBI who will lose his sorely-needed VA benefits with a DD over “too drunk” sex, or an officer of 20 years who will lose his retirement over one night of “too drunk” sex.

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

    I think the Government’s record today will be like the Minnesota Vikings’ Superbowl record:  0-4.

  7. k fischer says:

    Re:
     
    It seems like the Court is more inclined to send the case back to the Convening Authority (not going to be Lorge) and direct the Convening Authority to take the action IAW R.C.M. 1007 Lorge said he would have taken but for the ‘error,’ which is dismiss the charges.  And they seemed disinclined to dismiss the charges with prejudice due to UCI by Crawford.
     
    If so, then does that relieve them of getting into the weeds about current Navy TJAG’s conduct and how illegal it was?  Or are they going to throw the SJA under the bus by stating that the resolution he pitched to Lorge with a smile that Lorge should not take the action he wanted and was authorized to take, but rather, he should approve the findings with this comment, so that the appellate courts would reverse, was error.  Then, they get to send it back to the current Convening Authority with the direction that he or she dismiss the charges as Lorge was going to before he was erroneously advised.  Crawford walks away clean with very little comment about his actions.
     
    I’m hoping that the top lawyers for each of this Country’s Armed Services have learned how bad Crawford’s conduct was in its substance and appearance and that they never do that again.  I would hope that any of them would make any comments that could be construed as advice that they should allow an innocent man to languish in prison for charges that failed to meet the burden of proof simply to appease our Congressional leaders who have actively painted targets on the backs of Commanders who failed to do their bidding.
     
    But, getting back to the SJA’s resolution that the CA approve the findings and sentence and let the Appellate Court do the right thing.  Is that proper?  And, if it is not proper, then what about when a Preliminary Hearing Officer recommends that the charges be dismissed and the Convening Authority wants to do that?  How many times has a Convening Authority been advised in such a situation that they should send the case to a Court-martial, so the Accused can be acquitted? Or, that this case should go to Court-martial so the victim could have “her day in Court?”  And the overriding concern that is driving that advice is that we don’t want the Convening Authority to be called on the carpet to answer Gillibrand and McCaskill’s questions?  Is that proper advice?
     
    What Barry’s defense counsel have uncovered is that the US Navy from TJAG down to, the very least, his O6 are more concerned about how Congress deals with changing the UCMJ and painting targets on Commanders’ backs, than they are with a CA’s serious misgivings of a wrongful conviction.  It would be nice if CAAF’s opinion dealt with the issue of Crawford’s conduct and the SJA’s erroneous advice, which the Government conceded was erroneous.  Perhaps they could add a little dicta regarding the inappropriateness of a CA sending a case to a GCM, instead of dismissing the charges, for the same reason since this immense political pressure has been recognized and won’t go away soon.

  8. k fischer says:

    Zack, 
     
    Great job.  Your argument was clear, concise, and answered the question asked.  The rebuttal was even more powerful and reminded them how bad the error of propensity evidence has been viewed by the Court.

  9. Abe Froman says:

    K Fischer, having listened to the hearing now, I don’t think they are going to shy away from addressing the conduct of all the parties involved here regardless of which way this comes out.  They had no problem calling GCMCA a man who lacks a spine/conviction or SJA/DJAG for giving shoddy advice. 
    The government is conceding post-trial error to hopefully avoid that rebuke.  While Ryan seems to be leaning to the 1107 route, I am not entirely sure of the others; Stucky seemed especially steamed. 

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

    k fischer, CAAF isn’t going to send this to another CA, because as you heard, there is the (high) risk a different CA would reach a different decision.  They were baiting government counsel to see how she would respond.  Government counsel took the bait.
     
    Abe, CAAF might be looking for the “easy” way to make Barry whole, by substituting a correct 1107 that disapproves the findings and sentence because they are concerned about what it means for the military’s top court to make a finding that the Navy’s top lawyer committed UCI.  On the other hand, maybe they’re itching for a reason to find UCI?  They already have findings of fact, seems to me to boil down to conclusions of law and how you interpret “authorized by law” under Article 37, UCMJ.  I think that’s been laid out fairly well in these comments.  Would send a strong message, not just to the military but also to Congress, particularly Gillibrand and company. 
     
    Now is the time to send a desperately-needed strong message that UCI in sexual assault cases will not be tolerated!