A reader forwarded what appears to be a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.

I write appears to be because this could be a late April Fools Day joke. Part of me hopes it is.

Nevertheless, with that caveat, the motion is available here.

It begins:

The United States moves under Rule 30 for leave to file a Motion to Clarify the United States’ position in response to questions at Oral Argument. Good cause exists: little or no precedent governs this situation where the convening authority’s post-action statements demonstrate that notwithstanding receiving legally correct advice in the Addendum Staff Judge Advocate’s Recommendation, and signing an unambiguous and legally correct Convening Authority’s Action, he misunderstood his Article 60 powers and demonstrably considered matters outside the Record, arguably adverse to the accused, but disclosed none of them prior to taking Action.

Mot. at 1.

It’s a thoroughly unusual pleading made worse by the fact that the pronoun the United States is used to refer to the Government as a party to the case (as in: “The United States moves under Rule 30. . .” Mot. at 1), to the attorney who argued the case before CAAF (as in: “The United States responded ‘yes’ and ‘it’s possible.'” Mot at 3), and to the Navy-Marine Corps Appellate Government Division (as in: “The United States does not believe. . .” Mot. at 3 n.3).

18 Responses to “Unhappy with its argument in Barry, the Navy-Marine Corps Appellate Government Division offers a different one”

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

    I think the Government’s almost to China with it’s hole-digging on this one.

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

    No April Fool’s joke.  This is for real.

  3. Alfonso Decimo says:

    The crux of the matter seems lost in the haze. Was the Navy DJAG giving the CA a “Captain Obvious” piece of advice that dismissing a conviction would be controversial, or was he threatening consequences? The reason JAGs were elevated to three-stars from two was in response to their lack of influence over the promotions of line flags. At the time the two flags spoke, he was representing not just lawyerly advice from the Legal Office, but more importantly the opinion of future promotion and assignment authorities. It reminds me of Tony Soprano’s advice: “It’s an old Italian saying, for the first mistake, you lose two teeth.”

  4. k fischer says:

    I read with great interest articles and commentary from across the pond about the Crown Prosecution Service and the problems they are having with politicization of sexual assault prosecutions.   Most recently, the Director of Public Prosecutions (DPP) head of the CPS has decided to quit after her 5 year contract has expired, although she says she is not being sacked.  You can read how her office’s culture of aggressively prosecuting sexual assault affected one particular Accused and his family in this commentary by Daniel Janner, even though the case was ultimately dismissed.
    How many frustrated Judge Advocates across the Services who have chosen to get out could say something similar to this?

    As a barrister myself, I know that the Crown Prosecution Service was generally respected for its effectiveness and its judgement.
    But those qualities have been lost as Saunders has pursued her mission, where political considerations count for more than the hard-nosed assessment of evidence. Lawyers and police officers are in despair over her insistence that, in abuse cases, victims must be believed, as well her problematic guidance on the disclosure of evidence to the defence, which – as we have seen in the collapse of a host of rape trials – carries the risk of causing endless miscarriages of justice.

    Because this is what is going to happen when our military system of justice bends to the will of Senators Gillibrand and McCaskill.  Or maybe it already based on facts uncovered in the recent appeals to C.A.A.F. in Boyce (UCI), Vargas (Tampering with the Bench), Barry (Improperly advising CA), and Riesbeck (Panel Stacking).

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

    BLUF:  This conversation should NEVER have happened to begin with!  This wasn’t 2 chums reliving war stories over a beer, or even talking about other cases that Lorge wasn’t going to act on.  This was an UNAUTHORIZED conversation on an official matter that Lorge was preparing to take official action on.  And now that Lorge mustered the personal courage to do the RIGHT THING and the Navy is so desperate to save a questionable conviction that they are back-tracking on a case the Navy was destined to lose?  Come on.  You have to also wonder what influence is Crawford having on Barry RIGHT NOW?  All the more important for CAAF to send a strong, united message that this is UCI and it WILL NOT BE TOLERATED.
    It is obvious the Navy is pushing for CAAF to punt this case back to another convening authority who will send the case back for another trial because that is something Lorge was considering at one point.
    I can picture Judge Ryan reading this and saying, “Seriously, really?  You really want to say this?  This is the position you want to take?”

  6. Allan says:

    {Location: Pentagon, Navy TJAG’s Office}
    TJAG:  {reading the transcript of the oral argument} WTF.  Get the appellate chief in here, yesterday. 
    10 minutes later {a winded 0-6 walks into the office and stands at attention}
    TJAG: {reads the riot act}  First the Deputy screws the pooch, then the SJA gives bad advice, then appellate counsel misstates the position of the Navy.  I would not be surprised if the CNO concluded that Navy JAGs cannot prosecute cases at any level.  Not to mention the Senate, since this happened in a sexual misconduct case.  What do I say on tomorrow on the golf course with the Army and Air Force TJAGs and the DoD general counsel?  “Sorry, but the Navy is responsible for taking away the good order and discipline role of your commanders”? 

  7. K fischer says:

    This isn’t a situation where Lorge was saying that he wanted to dismiss charges or order a new trial because he was sick of the #metoo movement and wanted to send a message to all those liars.  That might be some sage advice to supplement the admishment that such a consideration of #metoo was improper and completely irrelevant.  This is a situation where the CA wanted to take a lawful action because he thought the kid was innocent and was advised to let the innocent kid remain a registered sex offender because it would make the Navy look bad or it would paint a target on his back.
    Again, put this into the context of an SJA advising that a CA should refer charges the CA think are bs because it would make the Navy look bad and paint a target on his back.  That is completely in appropriate.  Right?

  8. Allan says:

    K Fischer,
    I don’t understand what you are getting at.

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

    Current TJAG is the one who engaged in the unauthorized conversation with Lorge, and told him if he didn’t approve the findings, it would give the Navy a black eye and Lorge would “paint a target on his back.”  Not to mention Lorge’s SJA was giving him bad advice, telling him he couldn’t disapprove the findings.  And this was after the Air Force Wilkerson/Franklin case, where everyone got screamed at by bat-guano crazy Gillibrand.

  10. K fischer says:

    I don’t understand what I’m getting at either.  Typical.
    But, do you think Navy Deputy TJAG’s actions supports taking away GOAD from Commanders and places it in the hands of the Navy’s top lawyer who shows that his prosecutorial discretion is swayed by the whims of Gillibrand and McCaskill?  I think that Barry, Boyce, Vargas, and Riesbeck stand for the exact opposite position.  At least Army TJAG is smart enough not to engage in this kind of stuff.  

  11. Duderino says:

    I must say, it is fun to watch them flounder. (pun intended)
    in most instances, the person thought to have been involved in this kind of misconduct, especially when purported by a Flag Officer, the individual under the accusation would be removed from their duties would they not?
    although I wouldn’t call Barry a kid. Isn’t he a highly decorated reirement religionless Navy SEAL?

  12. k fischer says:

    Oh wait!  I know what I was getting at, and it wasn’t directed at your script.  It was just a general comment to answer the question of whether it is ever appropriate for a military attorney to advise a Convening Authority about discretionary decisions regarding sexual assault prosecutions.
    What if the CA was way off base in his discretion in that he had read over the Record of Trial five times where the Government’s case was strong and stated he wanted to send a message to the #metoo movement, even though he had no problem with the verdict because he in fact believed the Accused was guilty BARD?  In that situation, would it be unlawful or inappropriate for the TJAG to say, “This was a strong case.  You think he’s guilty.  So think about being called out in front of McCaskill and Gillibrand.  You would have to answer honestly that you thought he was guilty, but you wanted to send a message to the #metoo movement and let this guilty guy walk.  How is that going to reflect on the Navy?  It’s going to make us look really bad.”  Perhaps in that situation, it would be appropriate to bring in the appearance of injustice and what kind of negative effect that would have on the Navy.
    But, that was not the situation in this case.  In fact, was there any evidence that the SJA or TJAG disagreed with Lorge about Barry’s lack of guilt?  It seemed like the focus was on the impact of the dismissal on Lorge personally and on the Navy in general, notwithstanding the CA’s belief that Barry did not do what he was convicted of.  And, let’s say that 95% of the conversation was focused on the evidence and how the MJ made the right call, and 5% was supplemented with “and besides, consider a little how that is going to make the Navy look.”  Would that be innappropriate? 
    That doesn’t sound quite as bad, as “Hey, approve the findings, but add this little blurb in, so the Appellate Courts will do the right thing and reverse.”   But, I think under NO circumstances should a CA be advised that if he takes a certain lawful action that it is “going to paint a target on his back,” or words to that effect.

  13. k fischer says:

    Here is another great comment on Alison Saunder’s departure as head of the Crown Prosecution Service.  I have often thought this of CID, Government witnesses regarding victim behavior, and some SVP’s with whom I dealt or heard about:

    An interesting development for our police force, then. In future they do not have to believe everything someone tells them, in the manner of a particularly credulous village idiot. They may be allowed, possibly encouraged, to exhibit a degree of curiosity in their line of work — have a bit of a think about things, maybe even ask questions. I do hope they are able to cope.

    Anyone else think the quote above is applicable to sexual assault investigations and/or prosecutions in the military? 
    What about this quote?

    In fairness to her, I suppose one could argue that she was simply a willing victim of the political mindset of our liberal elite, which will brook no argument and appoints people to positions of great power based solely, it would seem, on their willingness to impose fashionable absurdities on the rest of us. That’s how you get ahead.

    Now I understand why some members of Congress use the British system and “how well it works” as an example to support taking away prosecutorial discretion from US Military Commanders.

  14. Allan says:

    A good point.  All the more reason Navy TJAG is probably was personally involved in the decision to recast the argument. 
    K. Fischer,
    I think the DTJAG (at the time) actions, if true, support nothing less than taking away the authority of military attorneys to try cases.  IMHO, commanders should have unbridled discretion in determining how to ensure the good order and discipline of the troops.  Frankly, it should not matter.  For most crimes, the US civil system has concurrent authority over soldiers (moreso CONUS).  If a person commits a crime that the commander does not believe affects the good order and discipline of the unit, there recpurse.  The GCMCA’s commander can take his/her own action or the local civil authority (state or federal) can go for it.

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

    The Navy TJAG WAS the Navy DJAG at the time this all went down.  If anything, this case has shown lawyers are just as vulnerable to Congressional pressure as convening authorities on sexual assault cases.  Handing authority over to “experienced lawyers” for decision-making with the idea of avoiding Congressional influence is a bunch of baloney.
    Handing these cases over to civilian prosecutors is also not the solution.  Federal prosecutors will not take weak cases, they require unanimous verdicts, and they have limits on the number of cases they can take.  Installations where there is exclusive federal jurisdiction, states have no authority to prosecute, and in any event, state prosecutors also will not take weak cases.
    The only solution is to have SASC and HASC meetings where all the TJAGs get together with all these cases and tell the committee members to BUTT OUT because their influence is RUINING our system.  Especially Gillibrand and Speier.  Takes a lot of personal courage, but if this is what it takes to bring an end to undue political influence, then that’s what it takes.  And bring in Franklin, Lorge, and Helms.

  16. stewie says:

    Heck, state prosecutors will often not take good cases if they don’t have a guarantee in their minds of a conviction.

  17. Allan says:

    1.  I do not think handing over these cases to the lawyers is a good idea.  The theory of the UCMJ is not criminal, but good order and discipline.  That is the job of the commander.
    2.  I disagree with this.  If cases are not good enough for the feds or states, why should they be good enough for the military?  Since these involve allegations of crimes, if the commander does not think that good order and discipline is in jeopardy, why not hand them over.
    3.  The ASCs have oversight authority.  They have the power to suggest a restructure the military justice system (or actually ask Congress to do so by overriding a veto).  In addition, the Senate ACS must consent to promotion of officers.  In sum, they have the authority.  Whether they use it in a way you (or I) think is good is another issue altogether.

  18. k fischer says:

    Regarding point 2, I think that allowing the Feds or state to take over prosecution is a bit difficult in that the State might not have the resources to prosecute a Soldier, fly in witnesses, hire experts, etc.  Plus, you have to think about the Accused who might not be able to afford a civilian attorney.  Plus, the civilians probably consider many of these allegations “military issues” if it is green on green assault.  So, I can see why they many times defer to the military regarding prosecution.