Yesterday, in the wake of the Navy-Marine Corps Appellate Government Division’s unusual Motion to Clarify Position in Response to Questions at Oral Argument in United States v. Barry, No. 17-0162/NA (CAAFlog case page), the Deputy Staff Judge Advocate – Navy Lieutenant Commander Jonathan Dowling – offered an amicus curiae brief in which he argues that neither he nor the Staff Judge Advocate who advised the convening authority committed unlawful command influence.

The brief is available here.

The brief seems to be motivated by the following questions during oral argument at CAAF:

During argument, the Court asked questions about staff judge advocates violating Article 37, UCMJ; two that are especially relevant here. First, “[c]an the Staff Judge Advocate or Deputy Staff Judge Advocate unlawfully influence a convening authority under Article 37?” (Audio Recording, 8:24). And second, what’s to be done “in a situation like this where we have, basically, a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do and then on top of that, a sort of imprimatur added by the TJAG saying the same thing for all the same reasons, it is going to make the Navy look bad, it is going to cause an issue, it is going to cause a problem, even going as far to give incorrect advice? (Audio Recording, 23:38).

Br. at 13-14. Seeming seeking to protect himself from any finding of “a collusion between the SJA and the Deputy SJA to keep their boss from doing what he wants to do,” LCDR Dowling asserts:

what are the limits or how far can the SJA go into a discussion of applicable policies before they violate Article 37, UCMJ? Regardless of the left and right limits, the facts of this case do not support a finding that the SJA or the DSJA violated Article 37, UCMJ here.

Br. at 15. He also argues:

The record does not indicate a tone or argument that could be construed as coercive or an unlawful influence. The record indicates that the SJA and DSJA advice was well within the bounds expected of them and well within the constraints of the law in executing their legal duty to advise the GCMCA. As the timeline above demonstrates, the SJA Office was acting pursuant to RADM Lorge’s expressed intent and direction, albeit an intent that was influenced by his conversations with Commander, Naval Legal Service Command.

Br. at 19.

The brief is filed by civilian counsel representing LCDR Dowling, but nowhere does it – or the accompanying motion to file – state that LCDR Dowling seeks to appear in his personal capacity. Rather, the brief suggests that it speaks for all staff judge advocates in the Navy:

There is no National Association of Staff Judge Advocates, as there is a National District Attorney Association, the National Association of Criminal Defense Lawyers, or similar organization, to represent the broad interests of the staff judge advocate community. Here, Amicus addresses an issue that is important for staff judge advocates Service-wide.

Br. at 2.

14 Responses to “Ducking and covering in the Barry case”

  1. k fischer says:

    Interesting.  What I find missing in this brief is where LCDR Dowling, after being told by Lorge that Crawford told him words to the effect of “don’t paint a target on your back” regarding dismissing the charges against Barry, strongly advised Lorge that it was completely inappropriate for him to consider his personal career regarding the lawful action he believed he should take at action and that if he did consider it, then he would be conflicted from taking action.

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

    Why is the Navy SO DESPARATE to hang on to THIS conviction?  Doesn’t this brief demonstrate even MORE UCI?

  3. J.M. says:

    Tami, public perception, IMO. Too many names about to be dragged through the mud. If the conviction stands then they have a strong argument that Admiral Crawford didn’t commit UCI. If the conviction is thrown out, their argument that Crawford did nothing wrong is severely weakened in the eyes of the public, IMO.

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

    Didn’t the alleged victim threaten to go to Gillibrand?  If so, that would explain the Navy’s desperation.

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

    JM,
     
    The problem is that the methods they are using are undermining the weak arguments they made.  They had a shot (seen here), but now they’ve blown it with their back-tracking and their continued mud-dragging.  They’re making things worse, not better.



     
    Public perception is not on the Navy’s side in this case.

  6. Anonymous says:

    Sounds like questions for Mr. Cave.

  7. stewie says:

    No collusion. No collusion. You’re the collusion!

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

    And in other news, the ACCA reversed Schloff’s conviction because the Army panel considered how the Army would look if they didn’t convict him.  UCI.  A rehearing is authorized.  Sheesh.

  9. J.M. says:

    Tami, I don’t see a ‘problem’ with how the gov is reacting. We all know that no serious action will be taken against Adm Crawford or any jag personnel for their actions. So if they want to max out their public humiliation with ridiculous arguments, more power to them .

  10. Capt. Harrison Byers says:

    He’s not an amicus, he’s a WITNESS.  Motion to file denied, do not pass go…

  11. DCGoneGalt says:

    Clownery

  12. k fischer says:

    And the hits just keep on comin’……..From this article:

     
    After a flurry of Monday motions in the courtroom of Navy Cmdr. Arthur Gaston, the military judge ruled that Vice Adm. James Crawford III — the Navy’s judge advocate general — appears to have exerted unlawful command influence in a case first brought to light by a 2015 story in The New York Times.
     

    Now I don’t know what all that means, but it sounds pretty bad.  

  13. Scott says:

    thanks for sharing that link. The SD Tribune article is refreshingly detailed for an article about military justice. 

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