Last week, in this post, I discussed 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.

At the time I hoped it was an April Fools Day joke. Seems not.

Barry’s defense counsel responded. The response is available here.

The response argues, in part:

Nowhere in Rule 40 does it permit for parties to supplement their oral argument with written responses eleven days later. “At some point, litigation must come to an end. That point has now been reached.” . . .

Moreover, for several reasons the government has not demonstrated good cause to grant a motion “clarifying” its position, which should more accurately be captioned as a motion to retract no fewer than five case-dispositive concessions.

Mot. at 2 (citation in footnote omitted).

14 Responses to “Barry responds to the Government Division’s unusual pleading”

  1. Charlie Gittins says:

    Appellate Government begging for a face-slapping, gets one from Barry’s counsel.  The question is, will CAAF pile on or just simply deny the Motion without further comment?  I am guessing just deny the motion coincident with the release of their opinion, in which opinion they will relentlessly savage the GOV.

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

    I have no doubt Navy TJAG listened to this and gave GAD a butt-chewing for their concessions, which led to the motion, which again, goes to show the extent of UCI in this case.  As if GAD had a choice but to concede.  There was a point in her argument where counsel lost all credibility with the judges.
     
    If CAAF was looking for a way to avoid finding UCI before, I think this motion will give CAAF every reason to find UCI now.  Check and mate.

  3. Anonymous says:

    So, when is the Navy TJAG charged?

  4. Allan says:

    If I remember correctly, the Army had a problematic UCI issue with a TJAG in the later 80s/early 90s.  I think that the Army JAG general corps survived and prospered after that.  Perhaps this is the Navy’s turn.
    IMHO, if not inappropriate, it would at least unseemly for a TJAG to involve himself in this.  Moreover, if he did so, which I do not doubt, it would likely violate the rules of the bar(s) he is a member of. 
    The Navy should drop its appeal and hope to be able to go on its way.  There is no way this is going to get better.  Make the defendant whole, call it moot, and don’t do it again.  Otherwise, I would fear that TJAG and CNO will lose their jobs.

  5. TC says:

    I’m not defending TJAG’s actions in this case in any way.  But if you think he called GAD to discuss the oral argument/brief, either before or after the argument, you’re crazy.  First of all, the man is not a sinister villain.  But even if he was, he wouldn’t be so foolish as to assume that he could make that call with no fear of it becoming public.  Defense made a big deal about the “whistleblowers” in this case, including one from GAD.  Regardless of what he did with the CA in this case, there is literally no chance he would risk making that call, even if he otherwise wanted to.

  6. Some Army Guy says:

    I’m not defending TJAG’s actions in this case in any way.  But if you think he called GAD to discuss the oral argument/brief, either before or after the argument, you’re crazy.  First of all, the man is not a sinister villain.  But even if he was, he wouldn’t be so foolish as to assume that he could make that call with no fear of it becoming public.  Defense made a big deal about the “whistleblowers” in this case, including one from GAD.  Regardless of what he did with the CA in this case, there is literally no chance he would risk making that call, even if he otherwise wanted to.
     

    TC, You really need to get on board the CAAFlog train, where everything that the government does is part of a sinister plot, led at the top through backroom deals and filtered down to the force through shady SJAs and malevolent chiefs of justice.

  7. Allan says:

    TC, that is a good point.
     
    Army guy: that is not true.  I have seen no-one suggest that there was a backroom deal, or that this matter involved the shadiness of SJAs or malevolence of chiefs of justice affected the case.  Instead, the SJA in this case is being accused of malfeasance, while the chief of justice is not being accused of anything.
     
    At most, there is a misunderstanding of the concept of good order and discipline, with some political leaders on one side and some generals on the other.

  8. (Former) ArmyTC says:

    TC, You really need to get on board the CAAFlog train, where everything that the government does is part of a sinister plot, led at the top through backroom deals and filtered down to the force through shady SJAs and malevolent chiefs of justice.

    Especially the sinister plot to keep eyes away from ACCA by keeping every single  EAMS-A login army.mil domain down. Very transparent. 

  9. k fischer says:

    SAG/(F)ATC,
     
    It does appear that everything the Government did was led at the top by TJAG of the Navy, as evidenced by her discussion with Lorge 8 months previous to US v. Barry, where:
     

     VADM DeRenzi spoke about how tenuous it had become for commanders to act as convening authorities in sex assault cases because of the political pressure Congress kept exerting on the military. 81 She lamented how every three to four months, court-martial decisions convening authorities made seemed to be called into question by members of Congress and even the President.82
     

    Seems like the pressure flowed down from the President himself to her, then from her to the Navy CA’s with whom she met.
     
    Then, during the backroom advice Lorge received by DTJAG and Cmdr Jones, he is made into a Type 3 Accuser and influenced to approve findings with which he did not agree.  And, the only reason anybody knows about this innapropriate advice is because of a whistleblower.
     
    So, that takes care of the Navy top down advice.  Let’s look at the Air Force from the US v. Boyce opinion:
     

    Col Bialke [SJA in US v. Wright] said that Lt Gen Harding told him: “the failure to refer the case to trial would place the Air Force in a difficult position with Congress; absent a ‘smoking gun,’ victims are to be believed and their cases referred to trial; and dismissing the charges without meeting with the named victim violated an Air Force regulation.”

     
     You think that advice was given in that one particular case, or do you think it was the general policy of the AF TJAG?
     
    As for the Army, I’ve had two Trial counsel who were Captains regarding two different cases tell me “That case had to go to trial, otherwise, the alleged vic would have been down in Gillibrand’s office the day after the charges were dismissed” and “Mr. Fischer, Congress is placing a lot of pressure to prefer on sexual assault cases,” respectively.  Where do you think these O3’s got that idea?

  10. k fischer says:

    Lt Gen Harding’s statement “the failure to refer the case to trial would place the Air Force in a difficult position with Congress,” IMO equates to “the failure of Mike Nifong to indict the Duke Lacrosse players would place his campaign for reelection in a difficult position with Durham County voters.”

  11. J.M. says:

    @Charlie Gittins: The CAAF response to the Govs motion was caught on video. https://youtu.be/qvPugcb7QGE

  12. Philip D. Cave says:

    http://www.sandiegouniontribune.com/military/sd-me-seal-trials-20180409-story.html

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

    TC and SAG,
     
    You don’t have to be a “sinister villain” to commit UCI.  Doesn’t have to be a “grand conspiracy” either. 
     

    But even if he was, he wouldn’t be so foolish as to assume that he could make that call with no fear of it becoming public.

     
    I’m sure Crawford thought his conversation with Lorge was “safe” and would never be disclosed either.  “Let the appellate courts sort it out,” right?  OK, and now it is.  Be careful of what you ask for.  Just sayin’.

  14. Charlie Gittins says:

    All I have to say about LtGen Harding is that he is a POS (IMO).  He tried to commit unlawful command influence in Harry Schmidt’s case and caused a young Captain to compromise her integrity.  If he told me the sky was blue, I would make him prove it with 10 arch-bishops.  There are those who are competent and then there are those who are political.  3 stars usually, but not always, are the latter. My two opponents in Navy Courts of Inquiry — were the former, not the latter.  Harding, the latter — but he was a product of the Air Force.
     

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