Opinion Analysis: Finding unlawful influence by external pressures including a Deputy Judge Advocate General’s improper advice to the convening authority, CAAF dismisses the sexual assault conviction with prejudice in United States v. Barry
CAAF decided the Navy case of United States v. Barry, 78 M.J. 70, No. 17-0162/NA (CAAFlog case page) (link to slip op.), on Wednesday, September 5, 2018. A divided court agrees that the appellant’s conviction of sexual assault in violation of Article 120(b) must be reversed, but it disagrees about how and why that reversal should occur. The majority orders the charge and specification dismissed with prejudice, while the dissenters would “instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty.” Diss. op. at 16.
Chief Judge Stucky writes for the court, joined by Judge Ohlson and Senior Judge Erdmann (participating because Judge Sparks recused himself). Judge Ryan dissents, joined by Judge Maggs.
CAAF granted review of two issues questioning 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.
After 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 Patrick Lorge (who has since retired) – approved the findings and sentence as adjudged. The NMCCA then remanded the case 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 discussed the case with then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (DJAG) of the Navy and with whom Lorge had previously served. Crawford later became the actual Judge Advocate General of the Navy (TJAG) and was promoted to Vice Admiral. According to Lorge, Crawford advised Lorge “that approving the findings and sentence was the appropriate course of action in [Barry]’s case.” Slip op. at 6.
Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at 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. I encourage the Appellate Court to reconcile the apparently divergent case law addressing the testimony that an accused may present during sentencing for the purpose of reconsideration under R.C.M. 924. 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 impartiality 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 pursuant to Article 66(c)[,] UCMJ, thereby allowing the accused to retire in the rank that he last honorably served.
Slip op. at 2-3 (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 summarily affirmed, 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 that he wanted to disapprove the findings and sentence, however he did not do so because of political pressures related to the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure was said to have been Lorge’s discussion of the case with Crawford. Barry then 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 last year (discussed here).
CAAF then granted review because, as Chief Judge Stucky’s majority opinion explains in the first sentence:
It is not every day that a general court-martial convening authority begs our forgiveness for his failure of leadership in approving findings he believed should not be approved.
Slip op. at 1 (emphasis added). That is, however, the harshest criticism of Lorge in the decision.
Unlawful influence in the military justice system was our #5 Military Justice Story of 2017. Article 37(a) of the UCMJ states, in part:
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.
This prohibition on unlawful influence applies only to persons subject to this chapter, meaning people subject to the UCMJ, and the Navy-Marine Corps Appellate Government Division further argued in this case that it only applies to people acting under the mantle of command authority. So the first question for CAAF is whether Crawford – then the DJAG and not a commander – can unlawfully influence in violation of Article 37.
Yes, explains Judge Stucky’s majority opinion:
Although our cases have focused on unlawful influence exerted by those in formal command, the plain language of Article 37(a), UCMJ, does not require one to operate with the imprimatur of command, and we decline to read a supposedly implied condition into congressional silence. . . . Therefore, we hold that a DJAG, even one acting without the mantle of command authority, can commit unlawful influence.
Slip op. at 8-9. The dissenters, however, don’t reach that issue because they find no actual unlawful influence. The dissent is based on a difference in opinion of the meaning of the words attempt to coerce or, by any unauthorized means, influence.
The majority holds that there was unlawful influence because:
the record clearly demonstrates that, but for external pressures including, but not limited to, RADM Crawford’s improper advice, RADM Lorge would have taken different action in Appellant’s case.
Such an “improper manipulation of the criminal justice process,” Boyce, 76 M.J. at 247, even if effectuated unintentionally, will not be countenanced by this Court.
Slip op. at 12. That holding is based on three additional holdings.
First, the majority observes that Lorge and Crawford discussed Barry’s case “and RADM Lorge left that conversation believing he had received legal advice to the effect that approving the findings and sentence in an action that detailed his strong concerns ‘was the best he could do in [Barry’s] case.'” Slip op. at 11. A footnote then explains:
We reject any suggestion that the provision of such advice was authorized, for the DJAG was not entitled to provide RADM Lorge with legal guidance. While SJAs are statutorily required to do so pursuant to Articles 6(b) and 60(d), UCMJ, 10 U.S.C. §§ 806(b), 860(d) (2012), no such authority extends to senior JAGC leadership.
Slip op. at 11 n.6. Put differently, the majority holds that Crawford was not authorized to provide legal guidance to Lorge. But the majority does not define legal guidance – whether, for example, legal guidance includes any statement interpreted by the listener as such, regardless of the speaker’s intent – nor does the majority explain whether or how this holding is a limitation on the sources of information available to a convening authority during the post-trial processing of a court-martial.
Second, the majority holds that:
the record clearly demonstrates that, but for external pressures including, but not limited to, RADM Crawford’s improper advice, RADM Lorge would have taken different action in Appellant’s case.
Slip op. at 12. Those external pressures – not including Crawford’s advice – seem to include “the political climate regarding sexual assault in the military” and that “everyone from the President down the chain and Congress would fail to look at its merits, and only view it through the prism of opinion.” Slip op at 11-12 (quoting Lorge’s post-trial affidavit). Put differently, the majority holds that external pressures (not clearly defined, and from sources not subject to the UCMJ) can at least contribute to the existence of unlawful influence.
Third, the majority disclaims any requirement that unlawful influence be an intentional act. Chief Judge Stucky writes:
While we do not question RADM Crawford’s motives or believe he acted intentionally, the plain language of Article 37(a), UMCJ, does not require intentional action. Article 37(a), UCMJ, clearly provides that “[n]o person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action … of any convening, approving, or reviewing authority with respect to his judicial acts.” (Emphasis added.)
Slip op. at 12 (emphasis in original). The majority then parses the phrase attempt to coerce or, by any unauthorized means, influence, concluding that the clause by unauthorized means “interrupts the sequence of verbs, and is preceded by the coordinating conjunction ‘or,'” and so “an ‘attempt to coerce’ necessarily requires intent, whereas influencing an action via unauthorized means violates the statute, regardless of intent.” Slip op. at 13.
That parsing, however, divides the court. The dissenters would hold that:
Pressures external to the military justice system — and a convening authority who feels influenced by such pressures — are altogether different from a person subject to the Uniform Code of Military Justice (UCMJ) attempting to coerce or influence a convening authority, which is what Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2012) (“Unlawfully influencing action of court”), requires.
Diss. op. at 1 (emphasis in original). Put differently, the dissenters:
see no conceivable reason why Congress would allow a person to attempt, by unauthorized means, to influence a convening authority, or permit an Article 37, UCMJ, violation to turn on a convening authority’s susceptibility to “feeling” influenced.
Diss. op. at 7. While it’s not hard to imagine – in our modern era of snowflake sensibilities – that there are members of Congress who would happily put feelings above objective reality, that’s not the point of Judge Ryan’s dissenting opinion. Rather, the point is that “it simply is not possible, within the context of Article 37(a), UCMJ, to ‘unintentionally’ attempt to coerce or influence a convening authority.” Diss. op. at 6. The dissenters explain:
The majority’s response to this careful analysis of the statute is to coin a newly minted “adverbial clause” exception to the “series-qualifier canon,” to avoid the necessity of showing any influence was intentional. But the bald assertion that the insertion of the phrase “by any unauthorized means” interrupts the sequence of the verbs and thus prevents the series-qualifier canon from applying “attempt” to “by unauthorized means, influence” is both grammatically and logically incorrect. It is true that the syntax of a statutory provision sometimes will indicate that a word does not modify all of the following items in a series. But “[t]he typical way in which syntax” might “suggest no carryover modification” is that some word “will be repeated before the second element.” Scalia & Garner, supra p. 4, at 148. For example, the sequence would be interrupted, and the majority’s interpretation would be correct, if Article 37(a), UCMJ, repeated the word “may” such that it said: “No person . . . may attempt to coerce, or may by unauthorized means, influence.” But Article 37(a), UCMJ, does not in fact repeat “may” or any other word that would break the sequence.
The majority’s interpretation, created for this case alone, also produces an absurd result that Congress could not have intended and underscores how tortured and strained its misinterpretation of the statute is.
Diss. op. at 6. The dissenters also wonder:
how the majority (quite modestly) condemns RADM Crawford yet entirely excuses VADM DeRenzi, who the DuBay military judge found also influenced RADM Lorge.
Diss. op. at 10. Chief Judge Stucky’s majority opinion distinguishes DeRenzi’s influence of Lorge as merely “a courtesy call well before the instant case [that] merely consisted of two senior officers discussing current events and trends affecting the military.” Slip op. at 10-11 n.5. But if the existence of unlawful influence turns on the feelings of the person influenced, then that otherwise-unrelated call is just as problematic as Crawford’s later conversation-turned-legal-guidance. The dissenters explain:
[T]he DuBay military judge found as fact that RADM Lorge “felt influenced” to take the action he did in Appellant’s case by the separate conversations with both RADM Crawford and VADM DeRenzi, thus these slightly different facts cannot compel a different result under the majority’s new Article 37, UCMJ, “felt influenced” test for actual command influence. Moreover, this bizarre misapplication of its own newly minted test for actual unlawful influence will leave both the field and lower courts floundering to determine how and when unintentional conduct rises to an “unlawful” level or constitutes “improper manipulation.”
Diss. op. at 11.
Yet the dissenters also apply a newly minted test. Concluding that there was no unlawful influence because there was no intent to influence, the dissenters nevertheless hold that the findings and sentence must be reversed because “R.C.M. 1107(g) . . . provides this Court the power to instruct a convening authority to replace an erroneous or ambiguous action with a corrected one.” Diss. op. at 13. Since CAAF has that power, the dissenters reason, it “should instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty.” Diss. op. at 16. That reasoning, however, turns on surprising interpretations of the meaning of erroneous, ambiguous, and corrected.
Observing that “this is a case of first impression,” diss. op. at 12, Judge Ryan’s dissenting opinion explains that Lorge’s action was erroneous because:
Erroneous is defined as “[c]ontaining error; not conformed to truth or justice; incorrect,” where error is defined as “a deviation from, or failure to achieve, the right course or standard.” Webster’s Unabridged at 869; see also R.C.M. 1107(g). Certainly, RADM Lorge’s action affirming a finding of guilty when he did not believe Appellant’s guilt was proved beyond a reasonable doubt, and that he might even be innocent, does “not conform to truth or justice.” Webster’s Unabridged at 869 (2d ed. 1952). . . . [T]he DuBay hearing military judge found that [Lorge] took an action he did not want to take in Appellant’s case. And RADM Lorge himself recognizes that his action was a violation of his duty. See Appendix A at 4. The action in this case was therefore erroneous by any measure.
Diss. op. at 14-15. That analysis avoids an important distinction: Lorge did not affirmatively approve the findings in this case. Rather, he merely approved the sentence while taking no action on the findings.
The majority opinion explains that:
RADM Lorge ultimately approved the adjudged findings and sentence in unambiguous language: “the sentence as adjudged is approved.”
Slip op. at 3. A footnote adds that:
In the absence of contrary evidence, a convening authority approves the findings by approving the sentence. United States v. Diaz, 40 M.J. 335, 337 (C.M.A. 1994).
Slip op. at 3 n.1. This is so because the UCMJ does not require a convening authority to act on the findings of a court-martial. Rather, Article 60 includes the unambiguous statement that:
Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required. . .
Article 60(c)(3)(A) (2018) (emphasis added). See also Article 60(c)(3) (2012) (“Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required.”); Article 60(c)(3) (1984) (“Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required.”).
It was different when the UCMJ was first enacted in 1951, as the convening authority was required to review the record for legal and factual sufficiency. See Article 64 (1951) (“In acting on the findings and sentence of a court-martial, the convening authority shall approve only such findings of guilty, and the sentence or such part or amount of the sentence, as he finds correct in law and fact and as he in his discretion determines should be approved.”). But Congress shifted that responsibility to the Courts of Criminal Appeals in the Military Justice Act of 1983, 97 Stat. 1393. After that (and until additional changes enacted in 2013 that limit a convening authority’s power), a convening authority had only the power to act on the findings of a court-martial. There was and is no duty on a convening authority to act on the findings in any case.
The dissenters find that “the action in this case was therefore erroneous by any measure” because Lorge “did not believe [Barry’s] guilt was proved beyond a reasonable doubt” and because “Lorge himself recognizes that his action was a violation of his duty.” Diss op. at 14-15. Congress, however, eliminated that duty over three decades ago. Furthermore, we don’t know how Lorge determined that Barry’s guilt was not proven because – as the dissenters acknowledge – “we may not inquire into, and the convening authority need not state, his reasons for the action.” Diss. op. at 11. Perhaps Lorge – alone in his office and without the benefit of an adversarial process – conducted an objective and disinterested examination of the record, reaching a correct conclusion about the case. Or perhaps Lorge doubted the conviction because of bias in favor of Barry, prejudice against the alleged victim, or misunderstanding of the law. We simply don’t know.
Next, the dissenters explain that Lorge’s action was ambiguous because:
Ambiguous is defined as “[d]oubtful or uncertain.” Webster’s Unabridged at 81; compare United States v. Captain, 75 M.J. 99, 105−06 C.A.A.F. 2016) (holding that the conflicting language between the approval paragraph and execution resulted in an ambiguous convening authority action that required the convening authority to withdraw the original action and substitute a corrected action), with United States v. Wilson, 65 M.J. 140, 141 (C.A.A.F. 2007) (“[W]hen the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect.”). RADM Lorge’s action was ambiguous because the statements that accompany it cast “doubt” and render “uncertain” his approval of a finding of guilty in Appellant’s case. Webster’s Unabridged at 81.
Diss. op. at 14. This seems to conflate the distinction between an ambiguous action and ambiguous reasons for the action. It is unambiguous that Lorge did not act on the findings (and thereby approved them). The only possible ambiguity is in Lorge’s reasoning for not acting but – as the dissenters acknowledge – his reasons need not be disclosed in any case.
Having characterized Lorge’s action as ambiguous, the dissenters also criticize the CCA for its action in this case:
Given the above, the question remains how and why the United States Navy-Marine Corps Court of Criminal Appeals concluded that the finding and sentence “should be approved” without further inquiry. United States v. Politte, 63 M.J. 24, 25 (C.A.A.F. 2006) (finding that the lower court erred in failing to return a convening authority’s action for clarification where there was ambiguity).
Diss. op. at 15-16. Yet CAAF also failed to make further inquiry when it granted review and summarily affirmed. 76 M.J. 269 (C.A.A.F. Apr. 27, 2017). CAAF didn’t take interest until after Lorge signed an affidavit in May 2017 (noted here) and Barry moved for reconsideration (grant noted here).
Finally, the dissenters explain that Lorge’s action must be corrected because:
Through the sentiments contained in his convening authority action and in his later affidavits, RADM Lorge both acted erroneously in approving the finding and sentence and introduced obvious ambiguity into his decision. Consequently, this Court should instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty pursuant to R.C.M. 1107(g). Only in this way can RADM Lorge’s action be corrected to comport with his actual preferred action.
Diss. op. at 16. This conclusion seems to be based on the premise that “to hold otherwise would read justice out of the military justice system, particularly where the convening authority himself is the one who told us he acted in error and did not believe the finding of guilty should be approved. In permitting an action disapproving the finding, we are effectuating, not interfering with, his discretion.” Diss. op. at 12. In other words, the dissenters suggest that a convening authority is the ultimate finder of fact, untethered from the adversarial process and rules of procedure and evidence, who may not approve a conviction unless he is personally convinced of guilt. And the majority seems to reach a similar conclusion, with Chief Judge Stucky writing that:
[I]f RADM Lorge truly believed that Appellant’s guilt had not been proven beyond a reasonable doubt, he would have been required to disapprove the findings and sentence and dismiss the charge and specification. Article 60(e)(3), UCMJ.
Slip op. at 14 n.9. But Article 60(e)(3) does not say that a convening authority must disapprove an insufficient finding (or even review for sufficiency of the evidence). Rather, Article 60(e)(3) only prohibits a convening authority from ordering a rehearing “where there is a lack of sufficient evidence in the record to support the findings.” And under Article 60(c)(3), a convening authority need not act on the findings at all in any case. Unfortunately, CAAF does not reconcile the discretionary nature of a convening authority’s action on findings with its unanimous disapproval of Lorge’s failure to act in this particular case.
The majority rejects the dissenters’ view that CAAF “or anyone else has the power actually to dictate to a new convening authority the content of a corrected action.” Slip op. at 15 n.10. However, the majority also finds actual unlawful influence in the “external pressures including, but not limited to, RADM Crawford’s improper advice.” Slip op. at 12. And so it applies the greatest remedy possible for an appellant: dismissal with prejudice. Barry’s conviction is reversed and he may not be tried again for the same offense:
This is a case in which the error cannot be rendered harmless and no useful purpose would be served by continuing the proceedings. . . .
After taking into account the facts and circumstances of this particular case, and in light of the unlawful influence committed by the DJAG, it would be inappropriate for us to subject Appellant to a new convening authority’s action or rehearing, particularly as to do so would only serve to lengthen a protracted litigation that has already reached its natural conclusion.
Instead, we believe nothing short of dismissal with prejudice will provide meaningful relief. While we do not reach this conclusion lightly, “the nature of the unlawful conduct in this case, combined with the unavailability of any other remedy that will eradicate the unlawful … influence and ensure the public perception of fairness in the military justice system, compel this result.” Lewis, 63 M.J. at 416.
Slip op. at 14-15.
• 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
• Oral argument audio
• Blog post: Unhappy with its argument, the Government Division offers a different one
• Blog post: Barry responds to the Government Division’s unusual pleading
• Blog post: Ducking and covering in the Barry case
• Blog post: The Government Division is stuck with its argument in Barry
• CAAF opinion
• Blog post: Opinion analysis