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.

Case Links:
• 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

125 Responses to “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”

  1. Bionic Barry Dylan says:

    Still taking in the ramifications here, but this was the right result for a case which probably never should have seen the inside of a courtroom.
     
    Is it too much to hope that this will finally be the beginning of the end of all the 120 madness?

  2. Anon says:

    So here’s the elephant in the room: we have a judicial finding from CAAF that then-DJAG Crawford committed UCI.  Arguably, in this context, that could be considered a violation of Article 98, UCMJ.  We also have a finding from the Dubay hearing, apparently undisturbed by CAAF, which found now-TJAG Crawford to have been less than candid with the Court, arguably a violation of Article 107, UCMJ.  Each or both is probably a violation of Article 133, UCMJ.
    Should we see consideration by the Secretary of retiring Admiral Crawford at his last honorably held rank, which would be Captain?  It certainly should be considered, as it would be with any other officer, if for no other reason than to reinforce to all that the rules apply to all, regardless of rank.
    Will it?  Don’t hold your breath.

  3. Zachary D Spilman says:

    The majority opinion explains that:

    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.

    Slip op. at 12 (emphasis added).

    Article 98(2) prohibits:

    knowingly and intentionally fail[ing] to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused

    (emphasis added).

    Accordingly, any assertion – based on CAAF’s opinion – that Crawford violated Article 98 is specious. 

  4. Anon says:

    Zack – I think that is arguable, but will set it aside in light of what you didn’t say.
    Can the same be said for Art. 107? If not, the same analysis should apply. Many more junior officers have suffered for lesser offenses than at least material omissions to a court, particularly to the highest court in the military justice system. 

  5. J.M. says:

    How widely does this open a door for appeals alleging UCI by non commanders? Hypothetically, like a 1SG calling an accused a rapist multiple times in unit formations and/or telling friends of the accused that testifying for the defense is disloyal to the unit and will be remembered?

  6. Zachary D Spilman says:

    The anonymous comment (1122) referencing Article 107 says:

    We also have a finding from the Dubay hearing, apparently undisturbed by CAAF, which found now-TJAG Crawford to have been less than candid with the Court, arguably a violation of Article 107, UCMJ.  

    That’s doubly wrong.

    First, as analyzed in this post, the Dubay military judge found that “VADM DeRenzi, RADM Lorge, and LCDR Dowling were all credible witnesses in this case.” Findings at 6. Conspicuously absent from that list was Crawford. But the absence of a finding that Crawford was a credible witness is not the same thing as a finding that he was not a credible witness, and it’s really not the same thing as a finding that he was less than candid. (particularly since credible and candid are also not the same thing; and neither are the same as honest).

    Second, Article 107 states that:

    Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

    (emphases added). Knowledge of falsehood and intent to deceive are elements of any prosecution under Article 107. See ¶ 31, Part IV, MCM (2016 ed.). Even assuming that the Dubay military’s judge’s non-finding of Crawford’s credibility is a finding that Crawford was not credible, and also assuming that is the same as a finding that Crawford was not candid, there is still zero evidence that Crawford made a knowingly false statement with intent to deceive. Accordingly, any assertion – based on CAAF’s opinion and the DuBay findings – that Crawford violated Article 98 is specious. 

    I don’t know VADM Crawford. But rushing to condemn him based on CAAF’s decision is just schadenfreude.

  7. djLaw says:

    Concur that the opinion alone does not support a 98 violation.  Perhaps, however, the NC bar complaint filed against Crawford will yield more material leading to that conclusion.  
     
    http://saveourheroesproject.org/save-our-heroes-project-files-state-bar-complaint-and-notifies-senate-armed-services-committee-re-unlawful-command-influence-of-navy-judge-advocate-general-admiral-james-crawford/

  8. djLaw says:

    Also concur that a 107 is far fetched given what is currently KNOWN.
    However, I feel that something should be done.  If Crawford were a junior E with the specter of even a minor crime hanging over his head, he wouldn’t be walking out of the door next week.  He’d be on hold.

  9. djLaw says:

    I agree that a 107 is far fetched given what is currently KNOWN.
    However, I feel that something should be done.  If Crawford were a junior E with the specter of even a minor crime hanging over his head, he wouldn’t be walking out of the door next week.  He’d be on hold.

  10. Sir Visdis Crediting says:

    In my opinion, the real holding is found at note 6. The CAAF held that the DJAG unlawfully influenced RADM Lorge (who felt influenced) because he was not required, and thus not authorized I guess, to give RADM Lorge legal advice. That is…something.
    And perhaps I missed the boat, but if an attempt to coerce requires specific intent and under Article 80, UCMJ, a criminal attempt requires specific intent, then how can an attempt be a lesser-included offense for practically every enumerated offense since specific intent is often not an element?

  11. Kafka Esq says:

    I have it on very good authority that the JSC has been meeting to discuss proposals to change Article 37. Anyone know what that’s about? The timing seems very curious to me.

  12. Vulture says:

    Regardless of this outcome commands will complain that the protections to the Accused are an impediment.  They might even point to US v. Barry as an example of such interference.  But like our host said, it was the facts of the particular case that matter.  The issue of a healthy system, see Scholarship Saturday, comes into play because the CCA could have resolved the issue.  It is only the continued desire of the Government attorneys to win that allowed Barry to get this far.  They are motivated by command, political motives, and career. 
     
    Stucky expresses a sentiment:
      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.
     
    That is like saying at a traffic stop “Can’t you give me a warning this time?” or when caught by a boss using company property “This is my first time taking staplers home.”  One has to ponder “Really, so you you were always perfect before?”  Someone said it best last week – The scrutiny doesn’t match the scandal.  But scandal is the label that UCI has to have.

  13. djLaw says:

    I take issue with Vulture’s comment that it is the desire of government attorney’s to win, etc.  This wasn’t a declaration of innocence by CAAF. 
    This is a case of political weakness that led to interference in the post trial process.  Period.  Save the prosecutors win at all costs crap.

  14. EmmanuelGoldstein says:

    But how many other cases like Barry happened but never saw the light of day because the convening authority did not step up and do what RADM Lorge did here? And what’s next…a bill from Senator Gillibrand stripping CAAF of its ability to dismiss cases with prejudice? 

  15. DCGoneGalt says:

    I agree with Zach that this is schadenfreude.  But I see it as schadenfreude by proxy.  IMO, ADM Crawford’s comments may have created apparent UCI (OK, actual) but his comments were nothing more than a statement of the obvious.  Any convening authority who doesn’t know that setting aside an Art 120 conviction would cause a media uproar, damage the service (at least in the impression of Congress and the POD-People who shape public opinion), and place a career-ending target on their own back is living under a rock and is so ignorant of reality as to be unworthy of their position. 
     
    IMO, the schadenfreude by proxy is because ADM Crawford is paying for the UCI sins of others.  For instance, how is it that officials who are responsible for extreme miscarriages of justice (US v Wright in the AF comes to mind . . . thank God that was an acquittal) just continue on with “nothing to see here” whereas these “common sense” comments by ADM Crawford are what will be the classic “crossing the line” case.
     
    ADM Crawford stated the obvious reality of the situation.  It is the reality of the situation, not the mentioning of that reality, that is the problem. 
     
    ADM Crawford’s statements pale in comparison to the incorrect legal advice given to him (perhaps in an effort to get him to not seriously consider reversing the case . . . or was it just plain, old honest ignorance) and the fact that a convening authority has finally admitted that they didn’t do the right thing due to the pressure.  There are many convening authorities that allow political concerns to drive the train when making choices on referral and several (I am sure just from playing the percentages) that have done so on action. 
     
    The reality is exactly what ADM Crawford said/insinuated.  We now have a bifurcated military justice system.  One for all non-sexual assault cases where the MCM controls and decisions are made on facts/law/good order and discipline basis.  And another for sexual assault cases where politics is also considered (but never mentioned . . . at least not to outsiders) and is many times the driving factor. 

  16. Vulture says:

    dj.
    I didn’t say prosecution win at all cost.  I did say Government.  This could have been, and was, corrected at the appellate level below CAAF.  Government escalated the stakes and appropriately lost. If prosecution was to seek to win by all costs, yes, that would be crap.

  17. TJD says:

    The problem isn’t that VADM Crawford “stated the obvious” about the scrutiny on the services regarding sexual assault cases, it is that he gave legal advice to a CA on a particular case. Remember, at the time that was done, then-RADM Crawford was Commander, Naval Legal Service Command, which meant that both the prosecution and defense CO’s reported directly to him. He can’t meddle in cases, period. Even if it is to tell other Flag officers what others are calling the “obvious,” to not put a target on his back for doing what was right and just.
    TJAG (then DJAG) crossed the line. Whether the JAG’s conduct violated a punitive article is not the point.

  18. Fisch says:

    Finally!  Been waiting to read this opinion for a while.
     
    Dismissal with prejudice is a great result for Barry.  I’m a little disappointed about the lack of comment by the majority and dissent about whether it is proper for a Convening Authority to use the pressure of politics in determine appropriate actions in a criminal case.  It’s just like Nifong, i.e. If I don’t fry these innocent boys, then I might look bad before the election.  Lorge pretty much said that he didn’t want the Navy to look bad, so he let a person he believed to be innocent to remain a convicted sex offender instead of dismissing the charges.  I think that a comment that such advice or consideration is completely inappropriate as a convening authority or SJA and is the antithesis of Justice and equates military justice with military music and military intelligence is in order.
     
    In fact, this would have been a perfect instance to show our good Senators how their hysterics affect the military criminal justice system.  Anyone else notice that the majority opinion omitted that portion of Lorge’s statement about the President and Senator Gillibrand?  But, the dissent kept it in.
     
    And, Vulture wrote:
     

    Stucky expresses a sentiment: 
    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.

     
    I do think that the advice Lorge received is an everyday occurrence in that Convening Authorities and the chain of command receive it from their SJA’s, CJA’s and TC’s.  The failure to strongly condemn such advice in the most direct language possible so that people from TJAG down to the 1LT coming in from the Judge Advocate Basic Course can understand is a yuge opportunity that was missed bigly. 
     
    I would have liked to have seen one statement like this: “Considerations regarding how a finding of not guilty would affect the Navy or a factfinder’s personal career have no place in the panel deliberation room, in the decision to refer a case, or in a decision to take a lawful action such as the dismissal of charges.”  What I gathered at footnote 6 was that the advice given caused prejudice because Crawford wasn’t authorized to give it because he was the DJAG and not the SJA.

  19. observer says:

    Correct ruling for sure, but the reliance at Footnote 6 is troubling to me.  Framing it as whether DJAG was not “entitled to give advice” seems the wrong question.  It appears from the rendition of facts that the RADM was the one that wanted to discuss the issue with DJAG.  Is it somewhere prohibited for the RADM to ask DJAG a question?  What if the RADM had sought advice from a superior commander and was given the same advice that DJAG gave?  Wouldn’t that advice still be UCI?
    Why rely on the argument that DJAG wasn’t entitled to give advice.  Seems strange to me

  20. observer says:

    I tried to post this earlier, but apparently it didn’t take.  Apologies if I double tap you with it.
    The reliance at Footnote 6 seems strange to me.  Framing the issue as whether DJAG was “entitled to give advice” rather than whether the RADM was entitled to receive advice seems to be misguided.  It appears from the background section that the RADM sought ought advice from DJAG-not the other way around.  What if the RADM had gone to a superior commander for advice and received the same advice?  Would it still not be UCI?
    Doesn’t DJAG had the “mantle of command authority?”–that should be enough to find UCI when exercising this type of influence?

  21. ounce of prevention says:

    Misc. thoughts (please allow for SJA bent):
    – Prevention going forward might be a good topic for an SJA-gram and maybe even GCMCA breakout at Annual Flag Officer Conference (i.e. authorities and how to spot and what to do if you think you spot UCI in the JAG chain of command).  
    – In this case, when the acting SJA (LCDR Dowling) identified “potential post trial error” (UCI) on 31 March, there remained opportunity for the government to address it.  IMHO, he should at least have advised the CA regarding UCI (not taking the action) and identified the issue to JAG headquarters (allow clarification letter CA has full discretion).  
    – Navy GCMCA SJA’s used to be attached and report to the GCMCA but they were brought back under the JAG umbrella years ago. Now they are attached to RLSO’s and their Reporting Senior is the RLSO CO who reports to OJAG/CNLSC.  GCMCA signs as concurrent reporting senior.  JAG/CNLSC chair JAG promotion boards.  OJAG/CNIC MOU says detailed GCMCA SJA’s are the only officers to provide neutral and detached CA advice to GCMCA, but sometimes OJAG/CNSLC oversight of prosecution and post trial processing via RLSO can seem to encourage a particular course of action (and sometimes GCMCA’s talk direcly to JAG/DJAG). 
    – Appears GCMCA SJA was out of contact on extended travel without experienced stand-in.  LCDR Dowling appears to have been serving in his first SJA position as deputy and then acting SJA (also there was something strange in his communications about a Barry related FITREP dispute).  GCMCA SJA schoolhouse post trial processing training is limited.  SJA advice on CA’s desired action could have benefited from staffing with stakeholders… and/or later sending the case up higher for action if there remained UCI… perhaps with CA’s recommendation.
    – Several great law review articles over the years have recommended decreasing the amount of military post-trial processing, which among other more important benefits might collaterally reduce the number of post trial processing errors.  

  22. Kafka Esq says:

    While I applaud the majority’s decision, I wonder if the rather unique facts of this case actually will make it harder for an accused to prevail in a UCI motion. For example, does an accused now have to hope the convening authority will provide an affidavit stating that, but for the external pressures, he/she would have taken different action? While the majority notes that Barry met his initial burden in part by showing Crawford made the “target on the back” comment and that Crawford provided legal advice to Lorge, the crux of the majority’s analysis re: the initial burden lies in Lorge’s affidavit. If the real reason there’s UCI in this case is because Lorge would have taken different action but for the external pressure, then the majority actually hasn’t done the defense bar any favors because I fear the wagons are about to circle even tighter.

  23. Smilin' Jack Ross says:

    Kafka Esq, 
     
    And without that affidavit, uniformed defense counsel could face a court martial for professional misconduct for accusing an Officer of a crime without proper evidence and they will have to staple that to every job application they ever fill out.  And btw, I’m an excellent softball player, Kafka.
     
    But, seriously, I believe that every defense counsel in the US Navy should file a motion to disqualify the Convening Authority in any questionable case with an Article 120 charge and use the facts of this case as an example.  There is an appearance of UCI in the entire Navy because this is the TJAG who committed it.  So, it is imperative that each and every defense counsel interview the Convening Authority to ensure that they referred a case without any undue consideration to their career or a “target being painted on their back.”  This is most effective when the 32 PHO recommends that the case not go forward, but yet it does.

  24. Zachary D Spilman says:

    There is an appearance of UCI in the entire Navy because this is the TJAG who committed it. 

    No, there isn’t.

    [T]he following process ensues when an appellant asserts there was an appearance of unlawful command influence. The appellant initially must show “some evidence” that unlawful command influence occurred. Stoneman, 57 M.J. at 41 (internal quotation marks omitted) (citation omitted); see also United States v. Ayala, 43 M.J. 296, 300 (C.A.A.F. 1995) (“The quantum of evidence necessary to raise unlawful command influence is the same as that required to submit a factual issue to the trier of fact [i.e., “some evidence].”). This burden on the defense is low, but the evidence presented must consist of more than “mere allegation or speculation.” United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013); see also Allen, 33 M.J. at 212 (“Proof of [command influence] in the air, so to speak, will not do.” (internal quotation marks omitted) (citation omitted)).

    United States v. Boyce, 76 M.J. 242, 249 (C.A.A.F. 2017) (modifications in original) (emphases added)

  25. Smilin' Jack Ross says:

    C’mon Zack,
     
    You are telling me that if a Convening Authority in the Navy or Marine Corps refers a case to a GCM where the 32 IO recommends dismissal of the charges or finds no probable cause and you attempt to interview the Convening Authority to determine whether or not he felt external pressure in referring the case, then the fact that the current TJAG when he was one step removed from that office advised a GCMCA to refer because words to the effect of nonreferral “will paint a target on his back” is not an appearance of UCI?
     
    This isn’t some 06 who committed ACTUAL UCI.  This is TJAG of the Navy who oversees all facets of the Navy JAG Corps. When presented with a GCMCA who said, “Hey I think this guy’s innocent and I want to dismiss charges,” instead of leaving Lorge with the impression of “Well, my duty as a GCMCA requires me to dismiss the charges and do what I believe is right” Crawford left Lorge with the impression that a target was going to be painted on his back and his little statement in approving the sentence was the best he could do.  
     
    This is not proof of command influence “in the air, so to speak[.]”  This is a factual finding made by the Chief Judge of the Air Force and ratified by C.A.A.F. that the highest ranking attorney in the Navy committed ACTUAL UCI.  And, when you get that Navy case with facts that are so weak that the only explanation is that the referral was politically driven, then I think you owe it to your client to drop an appearance of UCI motion because a member of the general public who knows what happened in Barry would have little confidence regarding the fairness of the military justice system in the Navy. 

  26. Alfonso Decimo says:

    Zack is right that a defense attorney must first present “some evidence” of apparent UCI, but perhaps the fact the DJAG committed actual UCI in this case will help put that “some evidence” in context. For instance, if a CA is heard to say she’s hoping for the right result in a particular case, based on what we know now about how CA’s are advised, that now will be “some evidence” when it wasn’t pre-Barry.

  27. rob says:

    Wondering why this isn’t better addressed as an “accuser” issue — RADM Lorge’s personal willingness to send another whom he viewed as an innocent man to jail to save his own hide — rather than as an issue of UCI.
    Same result, perhaps, but without the fuzziness surrounding the issues surrounding the majority’s treatment of the claim of UCII.

  28. Philip D. Cave says:

    Rob, Barry does not involve the CA as a Type-III accuser.  The issues arose in the post-trial processing of the case.
     
    However, does Rob raise an interesting question about challenging all CA’s as Type-III accusers on the theory that they have a personal interest in the outcome of the court-martial–protecting their careers or reputation.  I recognize this is likely going to be dissed as a real stretch, but is it, and if so, how far?  At the risk of headnoting,
     
    United States v. Ashby, 68 M.J. 108 (2008) (under Article 1(9), UCMJ, an accuser is an individual: (1) who signs and swears to charges; (2) who directs that charges nominally be signed and sworn to by another [type two accuser]; or (3) who has an interest other than an official interest in the prosecution of the accused [type three accuser]; an accuser may not convene a general or special court-martial, nor may he refer charges to a court-martial; convening authorities are not disqualified from referring charges by prior participation in the same case except when they have acted as accuser). CAAF’s digest for this case goes on to say:
     
    (the test for determining whether a convening authority is an accuser is whether he was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter; personal interests relate to matters affecting the convening authority’s ego, family, and personal property,
    Ego meaning personal reputation?
    Family meaning pay and rank?
    Personal property meaning pay from a loss or withholding of a higher rank or continuation on active duty?
    and a convening authority’s dramatic expression of anger towards an accused might also disqualify the commander if it demonstrates personal animosity meaning they are so angry at the accused creating a public relations nightmare for the Service?

  29. anon says:

    It may not be fair to continue attributing the “target on back” comment to TJAG.  The only two parties to the conversation said:
    “RADM Lorge has no recollection of RADM Crawford’s comment regarding putting a target on his back and claims that had RADM Crawford said it, he would have taken it as a joke. RADM Crawford denied making the comment.”

  30. Rob says:

    You catch my drift exactly, Mr. Cave.
    Just add to that a bit of Barry.

  31. Anon says:

    Anon 1658: Yes, RADM Crawford denied making the comment. The same RADM Crawford more-or-less tacitly called a liar by the Dubay Judge. 

  32. Rob says:

    To Anon, I’m sure reasonable minds might differ, but I find RADM Lorge’s actually sending someone he considered an innocent man to prison just to save his own career – as proven by his own sworn statement — to be a more serious matter than a dispute over what RADM Crawford  may or may not have said to RADM Lorge and what he intended by it.
    Mind you, only morally/ethically speaking, if such things matter in this day and age.

  33. Anon 1658 says:

    Anon 1747, I agree with Judge Spath’s skepticism regarding TJAG’s amnesia.  Rob, I don’t mean to defend GCMCA’s lack of moral courage.  Instead, my caution is that we should take with a grain of salt the detailed but uncorroborated testimony of the acting/deputy sja who was not there and may have had his own motives (RLSO fitrep dispute he said was due to Barry, hired private attorney, filed amicus brief, did not prepare/staff the option CA wanted, did not properly advise CA regarding UCI, did not attempt to remedy UCI, held concern extended time before raising, raised issue with peer vice leadership, etc.).  

  34. Rob says:

    Point taken, Anon 1658: there seems to have been plenty of Navy JAGs who could have prevented/mitigated this.
    But, the buck should have stopped with the CA.  
    It’s the long-standing foundation of the military justice system, which existed long before the Navy JAG Corps ever was invented.
    If that’s no longer the case, for whatever the reason, then the system should be gutted entirely and thrown upon the waste heap of history, in my opinion.
     

  35. Vulture says:

    re: …circle the wagons…,
    Have hope KafkaThe Metamorphosis happens in a cocoon. 

  36. Concerned Defender says:

    Barry is troubling for many reasons articulated above and in the dissent.  It is, however, MORE a sign of the symptomatic illness that is going to destroy the military and military justice if not checked immediately – the social justice warrior nonsense and prosecutors and judges not doing their jobs.  Justice should be blind.  It should not be frothing at the mouth, hang-em-at-all-costs, mentality that is so toxically pervasive in the military.  
    Here’s the important question.  Why is it that Jorge, the non-lawyer (I presume) was the only sane person troubled by the lack of a fair trial?  Did the Judge not observe the trial, read motions, hear arguments, hear testimony?  Were the multiple prosecutors comfortable sending the accused to prison and ruining him, on what I can assume is at least some level of apparent lack of fairness?  I assume the Chief of military justice observed some/all of the proceedings?  The SJA read the entire case…  Where were the crim law adults in the room – nobody had the stones to raise any concerns for a PRESUMABLY INNOCENT MAN being convicted???  Not until the non-lawyer Jorge?  These are the troubling problems and a cancer to military justice. 
    If you have not done so, you should read the case history.  I doubt a single honest person would feel comfortable with charging, convicting, imprisoning for 3 years, and a DD for what is at least reasonably clearly 2  minutes of anal sex in which there was either consent or reasonable mistake of fact…  the “victim” allowed consented to a bondage scenario and anal digital penetration, and then there’s ambiguity about the consent of penis penetration (whether consensual or part of the bondage game).  Along with her behavior before, during, and after the sex, it’s obvious there was consent or reasonable MOF. 
    It’s extremely troubling that this nonsense is brought to trial and pass muster by prosecutors, chiefs of justice, MJs and SJAs… and results in a ruined life and conviction.  The imbalance of power has so deeply shifted to any woman, who can do anything, say anything, behave in any way she wants, and withdraw or refuse consent LONG after the otherwise consensual sex occurs – years in fact.   Here, she didn’t complain for a MONTH.  Until scorned by a broken relationship, apparently, as was the defense.
    http://www.jag.navy.mil/courts/documents/archive/2016/BARRY-201500064.UNPUB.pdf
    “The appellant argues AV’s consent, or his mistake of fact as to her consent, was evidenced by her actions in the days prior to, during, and in the immediate aftermath of the charged assault—which included: discussing her initial affection for the appellant with her friends; exchanging flirtatious text messages with the appellant about needing lubrication during their upcoming weekend; consenting to the bondage, blindfolding, and digital penetration; sitting in the appellant’s lap, hugging, and kissing him while in her underwear after being untied and showering; washing their cars together and buying food from an on-base restaurant together after they left the hotel; asking the appellant if he intended to visit the following weekend; and describing the bondage to a friend via text message, within hours of the events, without mentioning the assault….[Later] AV’s e-mail to the appellant accusing him of sexual assault, and his response denying the allegation by stating, “I thought [I] was being playful, fulfilling a fantasy that YOU had commented on (50 Shades of Grey)[;]”12 several text message conversations between AV and her friends in which they offered emotional support to her in the aftermath of the assault; AV’s statement to NCIS, and several video segments of AV’s 25 February 2013 NCIS interview in which AV appears to be relatively relaxed and un-traumatized. “

  37. djLaw says:

    I agree.  Based on what you read in an appellate decision, the only reasonable conclusion is that he wasn’t guilty.  All the prosecutors were corrupt as was the judge.  You are the only one brilliant enough and/or brave enough to see it.  
    There’s a reason appellate courts give deference to fact finders.  It’s to keep brilliant people from reading into facts they cannot know well enough.
     
    I’m not saying that the sex assault crisis isn’t screwing up the works to an extreme degree.  Don’t add to the insanity by being unreasonable as well.

  38. stewie says:

    “If that’s no longer the case, for whatever the reason, then the system should be gutted entirely and thrown upon the waste heap of history, in my opinion.”
     
    I’ll never understand this concept that you can only have a military justice system if commanders ultimately control all aspects of it. You DO NOT NEED COMMANDERS to approve a panel’s decision or have any say whatsoever. Commanders already decide when charges are brought. That’s more than good enough. Leave the rest to the attorneys and you still have a mighty fine criminal justice system relatively speaking (no human CJ system is going to be without flaws).
     
    The flaw here IMO was leaving the final decision up to commanders vice simply sending the authenticated ROT straight to the Service Court.

  39. rob says:

    Really, stewie:  based on the facts of the case, what’s your evidence that leaving all this up to the attorneys would result in a “mighty fine” MJ system, even relatively?
    Somehow, they couldn’t even manage to pull off what to seems to me be the obvious fix in these situations:  advise CNRSW to recuse himself and palm the case off to CNIC or another senior GCMCA.
    The evidence suggests to me that the involvement of the active-duty lawers was a much a part of the problem as the involvement of an active-duty commander.

  40. Former DC says:

    Stewie: Some history might help you understand why commanders have to be in control, one operational, one legal.
     
    Operationally, when Eisenhower had his SJA write the original UCMJ, he insisted that commanders be in control so the system would be focused on military efficiency and combat power. It also meant it would be difficult to turn the system against the military itself, as other nations before and since have had happen. Look at what happened to Germany’s commanders in the 30’s – arguably a facilitator of WWII – or Argentina right now. The UCMJ’s commander control makes that hard. 
     
    Legally, there were several attacks in the 60’s and 70’s on the constitutionality of the UCMJ (I’m at home, so I don’t have the citations immediately available, but you can look them up). The US Supreme Court explicitly conditioned the UCMJ’s constitutionality, being an Article I Court, not having juries, not having unfettered access to an Article III Court, and all the other differences from Aricle III courts, upon the fact that the commanders, and not lawyers, were in charge – that it was a tool of discipline and not simply a substitute legal system.  The cases focus on the commanders role.  Remember, the various JAG corps are all post-WWII creations, and as written (setting aside the amendments over the years), the role of lawyers is extremely limited – you didn’t even need a military judge. So, if we pull the commanders out of the system, some smart defense counsel absolutely will make a renewed attack on the constitutionality of the UCMJ. Based on my reading of the precedent, I’d say there is a real chance that attack would succeed.
     
    Bottom line: removal of the commanders from the system might seem desirable to the lawyers, but it’s a bad idea that won’t fly. 

  41. Concerned Defender says:

    I will add that I think the term “reasonable doubt” is lost on a lot of folks in the JAG Corps…  And as applied to a case where the facts include ample evidence of flirting and sexual interest, then voluntarily going to a hotel room together, consensual bondage acts including undressing, being tied up, blindfolded, and expressly consenting to anal penetration…. then claiming “no” but thereafter “be gentle,” or “go slow.”  Thereafter more obvious intimacy, dating relationship stuff…  I cannot fathom how ANY LAWYER WITH AN EDUCATION OR CONSCIENCE could charge this or convict on this fact pattern, weighed against the mighty legal responsibility to apply the definition and INNOCENT UNTIL PROVEN GUILTY….   It’s my opinion that lawyers involved in this should be seriously sanctioned by their bars, or worse.  Aside from taking life, nothing is more gravely serious than taking a man’s liberty – which is what these prosecutors and Judge did in this trial on flimsy evidence of guilt.    If one cannot apply this concept to a criminal case, one has zero business in the field of criminal law.  
    Folks get so wound up and buried in the deeply esoteric areas of the law they miss the big picture.  The reality is it’s plainly obvious there was express consent, or at least a very reasonable mistake of fact of consent here, given the fact pattern spelled out by the Courts.  Stated otherwise, when persons A and B are love interests and get a hotel room together, get naked, one agrees to bondage and being tied up and digital penetration and then says to go slow with sexual penetration, and behavior thereafter seems to affirm consent for a long period of time – it’s unfathomable that a sex crime is charged or results in conviction. 
    Let’s have a refresher on the law.   
    On “reasonable doubt,” here is the relevant legal instruction that a Military Judge would provide to a Court Martial Panel, found in DA Pam 27-9: 
    A reasonable doubt is an honest, conscientious doubt, suggested by the material evidence, or lack of it, in the case. It is an honest misgiving generated by insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must exclude every fair and reasonable hypothesis of the evidence except that of guilt. The fact that charges have been preferred against this accused and referred to this court for trial does not permit any inference of guilt. You must determine whether the accused is guilty or not guilty based solely upon the evidence presented here in court and upon the instructions I will give you. Because you cannot properly make that determination until you have heard all the evidence and received the instructions, it is of vital importance that you keep an open mind until all the evidence has been presented and the instructions have been given.”

  42. R.D.C. says:

    Anon 1658, You are right to question the fairness in attributing the “target on the back” comment directly to Admiral Crawford.  Even LCDR Dowling testified that the “target on the back” comment could have been a “distillation of a more nuanced and carefully-phrased conversation” between Admiral Lorge and Admiral Crawford.  See Amicus at 8 (http://www.caaflog.com/wp-content/uploads/USvBarry-No.-17-0162-NA-Amicus-Curiae-brief.pdf).  From his first-hand account, Admiral Lorge testified that after speaking with Admiral Crawford, he felt that “folks are going to be looking over your shoulder like – everywhere[.]”  Amcius at 8.  “Folks looking over your shoulder like – everywhere” is not quite “target on your back.”  It is close, an awfully similar sentiment, but no cigar.
    As for the DSJA filing the Amicus, it appears he met his objective given that Judge Ryan went from suggesting that the SJA and the DSJA violated Article 37 during oral argument to writing in her dissent that “neither RADM Crawford nor Vice Admiral (VADM) DeRenzi nor any other person subject to the UCMJ ‘attempt[ed] . . . by any unauthorized, means, [to] influence’ the convening authority, RADM Lorge.” 
    Ounce of prevention, Your comments do not reflect a fair assessment as to how then CDR Jones, the more experienced SJA to borrow your phrasing, addressed this “potential post trial error.”  After CDR Jones returned from overseas, “LCDR Dowling reported his concerns about then RADM Crawford speaking with RADM Lorge because the conversation appeared to influence RADM Lorge’s decision-making process.”  Amicus at 9.  CDR Jones determined that the alleged conversation did not amount to UCI, Amicus at 9, an opinion that was shared by Appellate Government and by the dissent, which IMHO was more persuasive than the majority.  The DSJA raised his concerns to Appellate Government in April 2017 after he spoke with a CAPT in the Reserves, which led to Appellate Defense contacting Admiral Lorge.  Amicus at 1.  Ultimately, Appellate Defense and the majority agreed with the less experienced acting SJA that something was amiss under Article 37.  
    It is easy to say what a legal advisor should have done when hindsight is 20/20.  But remember, the Barry Court split 3-2 on whether Admiral Crawford’s conduct amounted to an Article 37 violation.  Prior to the Barry decision, there was no majority opinion that specifically addressed whether the JAG or the DJAG was authorized to speak to a GCMCA about a specific case.  Compare United States v. Hagen, 25 M.J. 78, 87 (C.M.A. 1987) (J. Sullivan, concurring) (“The convening authority may seek legal advice through his assigned legal advisor or through superior legal officers including the Judge Advocate General. Art. 6(b), UCMJ, 10 U.S.C. § 806(b).”).  With fn 6, the majority makes new law or, at the very least, clarifies the issue as to whether senior JAGC Corps leadership can advise a GCMCAs on a given case – they can’t.  In contrast, the dissent, in fn 9, suggests that it remains an open question as to whether the DJAG may speak to a GCMCA about a given case.  Fortunately, the dissent was clear in fn 15 that a CA’s consideration of political pressure is erroneous.  

  43. Vulture says:

    “Target on the back” reticle on the thoracic spine.
    “Looking over your shoulder” reticle on the cranium.

  44. Anonymous says:

    So what happens to SCSW Barry now? Is he brought by on active duty from appellate leave and allowed to continue to serve or possibly retire?

  45. stewie says:

    Former SDC can you point to where I said “remove commanders from the system” versus a much more narrower point? Thanks. I don’t mind debating what I said but I’m not going to bother if you aren’t going to respond to what I said but what you appear to think I said.
     
    Try re reading my post again please and respond to what I actually said.

  46. Former DC says:

    Stewie,
    I think your comment speaks for itself, and it can be fairly read to say you advocate for the elimination of the role of the convening authority to approve the findings and/or sentence. You clearly say that the commander’s role should be limited to the decision to bring charges, at which point I understand you to advocate for lawyers-only up through appellate review, eliminating clemency and the other functions of the commander in the system.
     
    My point is that deletion of the commander’s role throughout the process is contrary to both the intent of the military justice system as a discipline tool, as well as removes the specific point upon which the constitutionality of the military justice system is based. I spelled out the danger clearly above  
     
    As this is is a professional blog, I see no reason to get into a flame war, and decline to do so. I made my point that removal of the commander’s role is unwise, for the aforesaid reasons. I leave you the last word. 

  47. Herbert Stock says:

    What happens now – Barry was in the brig for three years (presumably he now lacks the Physical fitness to resume as a Seal) and was discharged without any benefits including pay, end of service benefits, medical cover etc. It is a matter of public record that at least one ‘go fund me’ appeal raised money to prevent him becoming homeless and starving. Does he get his record, rank and benefits restored; does he get back pay? How about opportunities for career advancement; what about medical insurance. Where would a Senior Chief ex Seal fit after exoneration? 
    What happens to the senior officers who aided in this miscarriage of justice?
    I’m from Australia and our system is so different that this sort of injustice is much less likely.

  48. stewie says:

    “I think your comment speaks for itself, and it can be fairly read to say you advocate for the elimination of the role of the convening authority to approve the findings and/or sentence. You clearly say that the commander’s role should be limited to the decision to bring charges, at which point I understand you to advocate for lawyers-only up through appellate review, eliminating clemency and the other functions of the commander in the system.”
     
    Yes, so we agree not the entire system, just one part of it. The part that Congress is ALREADY mostly getting rid of. It’s more or less a formality now, very few charges he can affect or change, clemency is gone. And yet the sun still rises.
     
    This isn’t “deletion of the commander’s role throughout the process.” It’s the deletion of the commander’s role in ONE part of the process. The commander still decides whether to bring charges and what charges to bring. The commander still decides at multiple points whether to go forward or not, in what forum, and the commander picks the panel. So the danger in removing the commander completely from the backend of the process vice mostly completely like it is now, is what again exactly? What danger are you identifying?
     
    So the constitutionality of the process is so tenuous that even a small change to the commander’s role while leaving the vast majority of it untouched somehow renders it unconstitutional?
     
    Look if you are going to engage in hyperbole and grand statements without backing it up to questioning (and calling it a “flame war”) then why bother?

  49. Vulture says:

    There was one party here that asked for a target to be put on their back.  That was the alleged victim, and she turned it up to be seen by everybody.  Call me a victim shamer, but when you say “Hey sailor, let’s play a sex game and do me in the in the poop deck” you can’t blame him for dropping anchor.
     
    Lorge was able to articulate that the judge got out of hand, the witness wasn’t creditable, and that he didn’t believe that Barry had committed a rape.  The salaciousness of the sex act, be there any at all, pales in comparison to the wretchedness of what followed in the judicial process.
     
    General Crowder spoke at the hearings after the First World War that after trial there are several processes “in the nature of an appeal.”  It is to that where you can find the elimination of the CA’s clemency powers is unconstitutional. 

  50. stewie says:

    “I’m from Australia and our system is so different that this sort of injustice is much less likely.”
     
    How so? Legit question, not snark.

  51. Fisch says:

    Stewie/Former DC,
     
    I also read Stewie’s comment as focusing on post trial action, rather than taking complete control of the UCMJ away from Commanders, although Former DC raised some points for which I was not aware about why the UCMJ is a Command controlled system…..on paper…..
     
    Stewie is correct that we will not have to worry about a CA dismissing charges at clemency after the changes under the UCMJ.  But, I find that the issues raised in Barry are more likely to manifest during the pretrial advice.  For instance, how does the holding in Barry address the situation where a CA is discussing the PHO’s recommendation to dismiss charges with the SJA and the CA states his belief that the Accused is not guilty.  Is it appropriate or not appropriate for the SJA who feels pressure by Congress or the TJAG to then advise the CA that dismissing charges is going to make the CA’s Service look bad to Congress or that it might paint a target on his back or have people looking over his shoulder? 
     
    Does CAAF’s opinion in Barry  really answer this directly?  I didn’t really feel that such advice was condemned in the clearest language possible.  I mean, I kind of sort of assume by reading between the lines that the charges were dismissed WITH prejudice that the advice was bad, but nobody ever really commented on it.  Why?
     
    And Herbert Stock, I, too, would like to understand how the Australian military avoids the politicization of sexual assault prosecutions because they seem to be as, or more, susceptible to politics as the US.

  52. Kafka Esq says:

    Asking sincerely: why do we even have a military justice system anymore, at least as we know it?  What purpose does it serve, other than as a parallel justice system that (mostly) deprives criminal defendants of critical rights?  What are the cons to turning over everything (except for military-specific offenses, like AWOL) to the local DA?  And wouldn’t MEJA cover offenses committed overseas?  I suckle from the teat of military justice so I have certain financial interests in keeping the system as-is, but with each overturned case, I’m left wondering why we’re still pretending it’s 1947.

  53. Philip D. Cave says:

    I don’t think MEJA helps where the person is subject to the UCMJ.  Check out the Dinger litigation.
    United States v. Dinger, Crim. No. 1:15-cr-00047 (D.D.C. July 14, 2015) (dismissing without prejudice).

    MEJA also provides, however, that it may not be used “against a member of the Armed Forces subject to . . . the Uniform Code of Military Justice” or UCMJ. See id. at § 3261(d).  The UCMJ “applies in all places,” 10 U.S.C. § 805, and provides, in pertinent part, that the “following persons are subject to” it: “[r]etired members of a regular component of the armed forces who are entitled to pay.” See 10 U.S.C. § 802(a) & (a)(4). Retired members of a “reserve component” (as distinct from a “regular component”) are not subject to the UCMJ unless that retiree is “receiving hospitalization from an armed force.” See id. at § 802(a)(5).

    . . . As a result, the Government’s assertion of MEJA jurisdiction over the defendant is improper. The military has begun the process of instituting proceedings against the defendant in a court-martial of competent jurisdiction.
     

  54. stewie says:

    “What are the cons to turning over everything (except for military-specific offenses, like AWOL) to the local DA?”
     
    Well, let’s list some out:
     
    1. Which local DA? We talking the state or feds? If we are talking the feds, they ain’t got time for our cases or the manpower, so you are talking a lot of cases (even ones we would consider relatively strong) that either don’t go at all, or take years.
    2. If we are talking the state, then you think they are necessarily any better at protecting the rights of a criminal defendant?? You think a minority would prefer being tried in a state court? I wouldn’t.
    3. Might be better for an accused in say a sexual assault case from a pretrial perspective to go through the civilian system given they take way fewer cases to trial, but if you went to trial, your odds of conviction are pretty darn high.
     
    4. I certainly wouldn’t want to be an alleged victim in a civilian sex assault system. Talk about swinging from one extreme to the other!
     
    5. The state system is also way more dependent on race, gender and how much money you have as an accused than the military system is. If you have no money, 99% chance you are pleading guilty to something SOLELY on that basis in a state prosecution, because you aren’t likely to get much of any representation at all by legal counsel, and you will be browbeat and pressured into signing a guilty plea of having the book thrown at you.
     
    Bottom line, if we had a state civil system that was clearly better, where income and race didn’t matter all that much, then sure, let’s shut it all down. OR if we had a federal system that could take on the burden and cared about the buddy distro guy, or the date rape case, then fine, let’s all find new jobs.  But we don’t have that, and I’m not sure there’s any evidence, particularly in the former, that trading in the real issues an accused faces in the military system in any way resolve themselves for the better in the civilian system. At best, you are trading one set of problems for a different set, but all in all, I think I’d rather have the first set than the second.
     
    Fisch,
     
    Fair point on pretrial advice. CAAF should have been more definitive that this type of advice (do this or it’s your career) is bad juju regardless of when it’s proffered. Having said that, any SJA who attempts to generally comply with the basic principles at play here would, I would think/hope, avoid doing it then too.

  55. Concerned Defender says:

    Stewie, the bulk of your points 1-5 above are not my observations and experiences.  All things equal, I would FAR rather face a civilian criminal charging decision tree, grand jury system, and trial than a military one.  No question.  Why? Reasons are obvious.
    A.  Military is so entrenched with nepotism and UCI it’s inseparable from the system.  The General – on advice of his SJA, who he supervises and who supervises the Chief of MJ and Trial Counsel – referes criminal charges.  The General also, directly or indirectly, supervises all the military lawyers in the court room (TC, DC, and Judge) and picks and supervises the entire panel.  Seems a bit dis-ingenious to think it’s impartial.  Everyone in the room is controlled by the CG, and knows what the CG wants done.  The only one marginally distant is probably the DC, maybe the Judge.  Panel is picked of career minded law-and-order types, who are often brainwashed on military koolaid of SHARP and similar nonsense.   
    By contrast, a civilian judge and jury and DC are not really under any UCI from anyone. 
    B.  A military panel is 2/3rds to convict.  That’s not very good for the accused.  A civilian jury is generally 100% to convict.  That’s pretty tough to convict.
    C.  Military will expend absurd resources prosecuting cases.  Civilians don’t generally have these to waste on silly nonsense.
    A-C explain why you’re less likely to be charged, tried, or convicted in a civilian courtroom.

  56. Vulture says:

    I don’t’ know what they do in Australia, but maybe making Art. 37 prosecutable in civilian courts might get us off this Feres wheel of “Oh that’s horrible, what do we do?, There’s nothing we can do, Oh that’s horrible, what do we do?, There’s nothing we can do, ect, ect,…”

  57. Herbert Stock says:

    Firstly – promotions, particularly to General Officer ranks are not subject to any form of ‘advice and consent’ so that it would be impossible for a convening officer to be subject to ‘career advice’. Secondly, the idea of command influence does not apply – commanders set the tone of the military and are active in promoting standards – see https://youtu.be/QaqpoeVgr8U. Thirdly, serious allegations are investigated both militarily and civilly, and the resources and expertise of civilians brought to bear – a clear he said, she said complaint that doesn’t pass the smell test (sorry) would go nowhere. 
    Almost all senior legal officers in the military are reservists with active civil (criminal) practices – the current inquiry into misbehaviour by SAS personnel is being conducted by a reserve Major General who is also a Queen’s Counsel and a serving judge in the New South Wales judiciary. There is almost no opportunity for command interference.
    This is not to say injustice doesn’t occur (Lindy Chamberlin springs to mind), but hanging a senior NCO out to dry so as to foster a perception of ‘tough on crime’ would raise such a howl of protest as to be almost impossible.

  58. Vulture says:

    Careful about how good you make it sound Herbert.  We’re liable to put a tariff on it. 

  59. Herbet Stock says:

    Thank you Vulture – but my comments apply only to the military justice system, not the military as a whole: the Australian military has its own, serious, problems, with active misogyny amongst many senior NCOs and field grade officers being one. My comments are purely a reaction to the case of Senior Chief Barry, whose experience appalled me. As to a solution; I suspect the close, almost incestuous, relationship between senior political and administrative classes and the General Officer Corps, is something that is missing here, to the advantage of everyone.

  60. Fisch says:

    Herbert, 

     
    hanging a senior NCO out to dry so as to foster a perception of ‘tough on crime’ would raise such a howl of protest as to be almost impossible.

     
    I’m interested in how you can explain BG Lyn McDade’s prosecution of David Millar.  Because she explains as reported by this article: that she filed charges after she faced immense pressure from Representative Stephen Smith during a ministerial briefing. 
     
    So, I’m interested in what kind of pressure she could have faced in light of everything you mentioned above.  It seems like she would be immune from any kind of pressure.  
     
    Vulture, why do you we need civilian prosecutions of Article 37?  If you think an SJA, TJAG, SVP or TC has engaged in a malicious or unlawful prosecution and you are Active Duty, then draft the charge sheet and send it to the Accused’s Commander. 

  61. (Former) ArmyTC says:

    I had missed Concerned Defender and his particular flavor of Kool-Aid. Wait, no I hadn’t.

  62. stewie says:

    It is like getting red Kool-Aid, and thinking, ok it’s cherry or maybe strawberry flavored, drinking it and going…nope, it’s cough syrup flavored.
     
    Vulture…Article 37 applies how? I don’t see coercion. I see an inappropriate action, but that does not convert it into a criminal act.
     
    But here’s the thing. State bars exist. Make a report. Any one can do it.

  63. Fisch says:

    (F)ATC, 
     
    At least it’s not the #metoo variety of kool-aid with the essence of Asia Argento, which sounds like it would be favored by a few SVPs, Military Judges, and SJAs I’ve encountered in my travels……..
     
    Perhaps CD’s righteous indignation is appropriate in this instance, considering, I don’t know, that TJAG of the Navy committed ACTUAL UCI.  Seems like if the #1 attorneys in a Service advise their Convening Authorities on how much pressure Congress is placing on them regarding prosecuting sexual assault cases, then I think comments regarding a grand conspiracy deserves a bit less of an eye roll from those who lean towards the Government. 
     

  64. stewie says:

    Fisch,  the local homeless crazy man probably says something right every once in awhile too, but I’m still probably not going to double check the accuracy of anything he tells me.
     
    I certainly think there are two versions of judge advocate:
     
    1. That tell commanders what’s what in a just, fair way to all parties…which can mean, yep good to go, or go to trial, or it can mean, I think we’ve got problems or yeah we screwed that up, we need to do right by the accused, etc.
     
    2. That worry more about the commander’s career or the military, then ensuring that the system is just (which not ironically is the best way to protect the military, although maybe not the commander’s career).
     
     

  65. DCGoneGalt says:

    Experts in the field have narrowed this particular issue down to three theories:
     
    1.  stewie and concerned defender are the same person and with one of them unknowingly living only in the subconscious of the other.  (This is the majority theory.)
     
    2.  stewie and concerned defender jealously guard their CAAFLOG identities and never communicate their comments to their respective spouses and are actually a mil-to-mil couple who are unaware they are married to their CAAFLOG antagonist. 
     
    3.  stewie and concerned defender are aware of each other’s identities and their banter is part of some sort of long-term, millennial, hipster, awkward, inside joke that I don’t get.
     
    You must choose one theory.

  66. stewie says:

    1. My other personality is a single mom from Minnesota with three kids, who works two jobs while going to night school to get my Master’s degree because I want to show my kids to keep striving for your goals no matter your age/circumstance. So theory 1 doesn’t work.
     
    2. I’m not married, so option 2 is out. I also would totally tell my spouse my identity here because if I said something funny, I’d want validation from someone at least.
     
    3. Unfortunately, I am not young enough to be a millennial…and I barely understand them. So no on option 3.
     
    Option 4, CDC is really DCGoneGalt when you make him angry thanks to an unfortunate exposure to gamma radiation a few years ago. Moral of the story, don’t make DCGG angry, you wouldn’t like him when he’s angry.

  67. Concerned Defender says:

    Let’s review: CAAF overturned a conviction, where the CRIM LAW shop and SJA apparently violated their ethical duties and the only brave adult in the room to stand up to injustice was the non-lawyer commander.   These lawyers knowingly brought a garbage case to trial, tossed the whole “innocent until proven guilty bit” presumably, in plain contradiction to obvious evidence of consent or reasonable mistake of fact (um remember the whole flirting, kissy faces, before and after; the agreement to be bondaged and tied up and have the back door explored, the “go slow” agreement???).  An innocent man (Navy SEAL – elite training) went to prison and was ruined over this  nonsense. 
    And stewie and former TC think I’m the one drinking the kool aid??  Oh that is rich.  At what point to these folks yield to the fact that this was a grave injustice which is entirely DUE TO THE OVERZEALOUS SEX ASSAULT KOOL AID?
    Yeah, the ruse the JAG school teaches about how much better the MJ process is for the accused is total hogwash.  Anyone who prefers being a defendant/accused a criminal trial where the entire panel/jury is career law and order types selected by the very same person who exercises legal authority over them, the prosecution, the defense counsel, and the judge; and it’s essentially a coin-flip for guilt (66% to convict), with a litany of tacked on additional crimes (including felonies) that don’t even exist in the civilian world (disrespect, AWOL/desertion, dereliction, adultery, false statements, most 134 offenses, etc.); add to that the strongly suggestive UCI committed by anyone in Congress or the POTUS, tied to the career aspirations of senior military folks; add to that global jurisdiction and increasing hostility toward the rights of the accused; everyone knows that the military takes cases the civilians won’t bother with; and it’s also a federal conviction, even for something as trivial as a brief AWOL or Adultery or petty larceny or disrespect; and even if acquitted, you can still be administratively punished or kicked out for the same alleged acts; so anyone that would prefer being charged in the MJ system either fails to understand the process, or is insane. 
    The main advantage of the MJ system is a free probably badly overworked TDS lawyer – who knows he’s subjected to the same UCMJ and his next probable career move is right back on the side of the SJA team.  The only other “minor” advantage is a no-bail system, but there’s always pretrial confinement.  And finally, when confined, the facilities are much safer.  But call me crazy, being found not-guilty and being free is better than 2/3rds to convict and a military confinement.
    Yeah, I’m the kool aid drinker?!  That is hilarious. 

  68. Vulture says:

    Stewie.  So let me get this straight, you want dual sovereignty to bypass double jeopardy, as in Hennis, but can’t see a reason that the military’s commander driven system won’t prosecute UCI.  You want to be a military judge so bad you can taste it.
    Fisch. You assume that I haven’t.  Charge sheet no, complaint yes.  Bar eventually suspended the attorney’s license on another issue.  
     
    Frankly I like the Kafka comment about circling the wagons.  From the point of view of a vulture, it was funny to see the Donner party try that tactic.  Lawyers are going to eat each other stay in the graces of the commander.

  69. Concerned Defender says:

    To add to/support the above, it took me some time to locate the case that I remember hearing about.  Here’s the difference for an accused/defendant in the real world.  I have no opinion on the veracity of the allegations, this is just demonstrative of the process differences between civilian crim law and military law.
    http://www.wave3.com/story/18184922/military-panel-reaches-finding-in-court-martial-of-double-murder-suspect-brent-burke/
    http://www.wdrb.com/story/18242215/attorney-brent-burke-turned-down-much-better-plea-deal
    https://www.wlky.com/article/brent-burke-sentenced-to-life-without-parole-1/3777082
    A Soldier named Brian Burke was suspected of murder, on what appeared to be relatively flimsy and circumstantial evidence.  The state of Kentucky tried 4 times to convict him and it resulted in hung juries.  After 4 mistrials spanning four years, state prosecutors dropped the charges.  Burke was a free man.  
    But wait!
    The military picked up the case and with it’s “more fair for the accused” system, nailed him.  While there may have been some “new evidence,” I find that improbable to impact the outcome.  What is more probable was the far different standards to convict and materially different composition of the panel (and accompanying suggestive UCI).  The detectives were the same.  The evidence was essentially the same.  The military attorney’s are probably of similar competence as the civilians who had FOUR TRIES and failed.  Burke was convicted and sentenced to life without parole in prison. 
    Now, I’m no genius, but if I were Burke I think the civilian system was a far better one for him in his case.
    It is plainly obvious that the MJ system is a stacked deck against an accused in the service.  No legit argument otherwise.   
     
     

  70. Philip D. Cave says:

    [W]here the CRIM LAW shop (sic)* and SJA apparently violated their ethical duties . . . These lawyers knowingly brought a garbage case to trial, tossed the whole “innocent until proven guilty bit” presumably, in plain contradiction to obvious evidence[.]

    *The Navy is set up a little different to your Army experience.  The Region Legal Service Office (RLSO) and the Senior Trial Counsel (STC) would be managing the prosecution.
     
    (Keeping in mind that I have represented one of these lawyers in this matter) what’s the evidence for those assertions?
     

    [T]he only brave adult in the room to stand up to injustice was the non-lawyer commander. 

     
    I take that to be hyperbole.  Did he not ultimately approve the findings and sentence despite his qualms (else we’d not have United States v. Barry at NMCCA and CAAF)?  Compare LtGen Franklin and LtGen Vaughn who each did set aside findings and suffered the consequences.

  71. Concerned Defender says:

    Phil, you raise good points, and my comments were shorthand summary.  To be more clear, I cannot see how any reasonable prosecutor could in good faith and ethical requirements see the fact pattern and recommend charges.  The prosecutors (regardless of their titles) have express ethical requirements under the codes and rules to not bring frivolous cases unsupported by the evidence which doesn’t meet the probable cause standards for a criminal trial.  They also have other obligations cited in the blog.
    I do not believe the facts (consensual bondage, evidence of romantic intent and relationship, evidence of consent to the actions or at least overwhelming evidence of mistake of fact, given the bondage scenario, behavior before and afterwards of the “victim”) come close to probable cause.  That is a clear issue here.  Where were the adults?  A quick look at the definition and applied to common knowledge, engaging in bondage involves a level of being tied up, subservience, “rape fantasy,” and other similar things that the kids like to do these days.  How in the world did the prosecutors justify their actions in charging this, given that she KNOWINGLY AND VOLUNTARILY CONSENTED TO BONDAGE AND SAID ‘GO SLOW’ when he was doing what was expressly or implicitly consented to?  Yes, she apparently allegedly said “no,” but is that no part of the entire POINT of bondage – the thrill, the fantasy – or at least obvious mistake of fact on his part?  
    Worse still, a higher standard of BRD.  I highlighted the definition above.  There is simply no way this satisfies the BRD instruction/standard.  Here’s the excerpt (and whole) instruction again.  “…The proof must exclude every fair and reasonable hypothesis of the evidence except guilt…”  How can anyone see these facts, and convict, and then drop a 3 year and DD hammer for this, is bewildering to me.  I wasn’t there, but I’ve read pertinent case excerpts and – like the commander – extremely troubled by this case as a black eye on the MilJustice system.
    Yes, you are correct, he approved, but he included a note highlighting his serious misgivings and ultimately did the right thing as I understand.  I also understand he was taking counsel from the attorney(s) involved and following their (misguided) lead, along with being pressured from UCI above.  That’s a hard spot to be in.  Better late than never, he contacted and helped Barry’s defense team. 
    BRD instruction again: “A reasonable doubt is an honest, conscientious doubt, suggested by the material evidence, or lack of it, in the case. It is an honest misgiving generated by insufficiency of proof of guilt. Proof beyond a reasonable doubt means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must exclude every fair and reasonable hypothesis of the evidence except that of guilt. The fact that charges have been preferred against this accused and referred to this court for trial does not permit any inference of guilt. You must determine whether the accused is guilty or not guilty based solely upon the evidence presented here in court and upon the instructions I will give you. Because you cannot properly make that determination until you have heard all the evidence and received the instructions, it is of vital importance that you keep an open mind until all the evidence has been presented and the instructions have been given.”

  72. DCGoneGalt says:

    Short paragraphs.  Double spacing.
     
    Every time you write a paragraph over ten lines and use single spacing I fall to my knees, look to the Heavens, and begin praying for God to start opening seals and pour out bowls, angels to blow trumpets, and just have it all come to a spectacular end.

  73. stewie says:

    “Stewie.  So let me get this straight, you want dual sovereignty to bypass double jeopardy, as in Hennis, but can’t see a reason that the military’s commander driven system won’t prosecute UCI.” 
     
    First, I have no idea how you got to that conclusion since I didn’t say what I wanted via prosecution but instead made the observation that the standard for prosecution requires something more than simply bad/inappropriate lawyering (which I specifically said this was), and second, I see no relation between the first issue and the second issue in any way.
     
    I mean unless you were trying to be a Richard by insinuating that I don’t believe what I’m saying, or giving honest opinions, and am somehow, via my anonymous handle, signalling that I want to be a judge…
     
    “You want to be a military judge so bad you can taste it.”
     
    Oh wait, there it is.  I don’t want to lower this board by suggesting your perform an anatomically impossible act on yourself, so instead I’ll suggest you stop going ad hominem and address arguments and what you think the weakness are instead of attacking the person and insinuating that they just type things because “they want to be a military judge.” If I were to do that, first thing would probably be to, ya know, use my rank and name. Might be a little faster, and more successful that way.
    But ya know, thanks. Now I know the waste of time it would be to engage you in the future and I can just ignore anything you post so long as your discussion approach is “you are a liar and gov hack just saying stuff to be a judge.” 

  74. Vulture says:

    “Naw, I’ll stick with my original verbiage.”
    -You

  75. Vulture says:

    Herbert.  You are something of a guest here, I think, and it might be worth explaining that my personnel view points on UCI are that it is so vile a cancer that entertaining it in any form is … it hard to come up with a word.  It’s an intolerable strain.

  76. stewie says:

    Not remotely comparable situations, but that’s fine, best to just ignore each other for the sanity of the rest of the group.

  77. Anonymous says:

    As someone who was falsely accused (acquitted) during a GCM and a previously a panel member in a GCM, I would rather take my chances in the civilian criminal court system than the kangaroo court system of military justice. I’d rather be judged by a jury of my peers, not a panel of senior ranking individuals who have brainwashed by SHARP training, who have to unanimously agree, not have a 2/3rds majority. A DA is the most powerful person in the criminal justice system when it comes time to charging, however at least they’re attorneys, not some infantry officer, pilot, SWO, etc. that’s more concerned with career self-preservation than making sure the accused as a fair trial. Need a refresher of how terrible the military justice system has gone? Reference the USAF case of U.S v. Vargas. Don’t think the SVC’s and MJ don’t deserve bar complaints for what they did/didn’t do? Mike Nifong didn’t think what he did wasn’t wrong either.
    If you don’t think that depriving an accused of liberty due to not having full due process afforded to him/her the Constitution and the UCMJ is a travesty, then you should probably reevaluate your career choices of practicing law. I, as the rest of us, had to talk an E-8 from wanting to convict a young Airman of an Article 120 charge, solely based on “the Air Force has to look tough on sexual assault.” We used facts from the evidence presented during the trial to reason with him and we acquitted him. It’s insanely scary how irrational people could convict someone in a court martial just to “save face for the service.”
    Most of you won’t care what I saw, I don’t really care. But until you walk in my shoes, which is a stress and evil I would never wish on anyone to experience, you will never fully understand how much the military justice system needs to be reformed to prevent the Barry’s and Vargas’s from happening.

  78. Fisch says:

    Anon @ 1251hrs.  Couldn’t have written it better myself.  If it is any consolation, over the past two years, I think that the pendulum has begun swinging the opposite way where panels are more open to discuss the possibility that the complaining witness is lying.  Defense attorneys ought to ask during voire dire in all Article 120 cases “Raise your hand if you believe that false allegations of sexual assault are a problem in society? Raise your hand if you believe that false allegations are a problem in the military?”  
     
    I’m not sure this is a “Commander” problem.  Although I don’t have any specific basis for believing this, I am inclined to posit that the attorneys are more likely to push for trial when a Commander is disinclined to refer rather than a Commander who pushes to refer and the SJA doesn’t want to.  Granted, it is the Commander’s responsibility to refer or not refer and disregard the Nifongian SJA’s who exist (and they make up some, not all of the JAG Corps (F)ATC)), but I fault the attorneys for cases where the only explanation for referral is that the SJA and/or CA (1) are ignorant of the facts of the case, (2) know the facts of the case, but believe the complaining witness because they are stupid and/or brainwashed, or (3) are not ignorant, do not believe the victim, but refers anyways because they are cowards of the SGT Red O’Neill from Platoon variety who are just trying to maintain self preservation.  

  79. Philip D. Cave says:

    Anon @1251,
     

    I, as the rest of us, had to talk an E-8 from wanting to convict a young Airman of an Article 120 charge, solely based on “the Air Force has to look tough on sexual assault.” 

     
    Thank you for that.  The accused in Schloff didn’t fair so well when policy was introduced.  My impression is that there may be more juries with this problem but we don’t find out about them.
     
    The AF had Vargas, and not too long before that the Marines had Saylor.  The Navy had two “ancient” but still meaningful cases:  United States v. Allen and United States v. Mabe33 M.J. 200, 205 (C.M.A. 1991)  (the infamous “Mabe letter” case).
     
    Barry is not the first case with the Navy DJAG as part of the controversy.

    Much of the controversy before us concerns assignment of military judges to this case. Interrogatories put to the then Chief Judge of the Navy-Marine Corps Trial Judiciary provided many of the facts on which the issue has been litigated. In his answers, Judge Byrne stated that, during the last week of January 1987, he received a telephone call from the then-Deputy Judge Advocate General of the Navy concerning the case. The answer to one interrogatory relates that, during the conversation,
    DJAG stated something to the effect that the circuit planned to detail Captain R to the case but that Captain Pl was concerned, because, while Captain R was a fine military judge and exceptional officer, he was a light sentencer.
    . . . 
    Captain P stated that he informed Rear Admiral S of the local perception “that Judge Reed was a light sentencer” and pro-defense.
    Judge B further stated that he “was distracted by great irritation” by the call from Rear Admiral S and “considered it highly inappropriate.”

    United States v. Allen, 33 M.J. 209, 211 (C.M.A. 1991).  Some litigators may remember Allen for his appearance in Dinger and Larrabee.
     
    I guess lessons have to be relearned every 30 years or so.
     
     
     

  80. Concerned Defender says:

    AR27-26 (professional responsibility) demands: RULE 3.8 Special Responsibilities of a Trial Counsel
    A trial counsel shall: (a) recommend to the convening authority that any charge or
    specification not warranted by the evidence be withdrawn;
     
    State bars generally have requirements to only bring forth criminal charges supported by probable cause.  
    I’m simply not seeing probable cause in this case, and cannot understand how the entire prosecution team and above didn’t pause for a moment to consider that the accused might be innocent….

  81. Concerned Defender says:

    Sorry, forgot this is a Navy case, not Army.  The Rule is essentially the same, but the regulation is JAG INSTRUCTION 5803.1E.  Same idea. 

  82. Anonymous says:

    Well it’s quite easy, don’t charge the accused, have the complaining witness go on social media, give interviews, etc that attract the attention of Sen Gillibrand & Co. and watch the Service Secretary and Service Chief get verbally assaulted by Sen Gillbrand & Co. on C-SPAN. Or, you charge the accused, regardless of probably cause or not, and he/she is either convicted or acquitted, but you did your part as a Convening Authority. And your SJA/CoS are happy because they told the CA to send it to trail to not put the service in a difficult crossfire from Congress. They’re also happy the kept the CA out of trouble and their OPR/OER/FITREP will reflect so, future promotions, assignments, etc.
    Who loses ultimately, either by a lot or a little? The accused, but no one cared about us except for the defense.

  83. stewie says:

    Listing the problems in the military system is fair, there are plenty.
     
    But that ignores the problems in the civilian system. Of which there are legion. Want an attorney who spends more than ten minutes with you? Better have money. Want your attorney to see the evidence early on? He or she might get it right before trial. Want a jury of intelligent, college-educated people? You will get a jury of people who couldn’t get out of jury duty. Want a racially unbiased jury? Good luck with that. Do you have bail money to get out of jail? I could go on, and on, and on. 
     
    I’m not minimizing the real issues folks have suffered. It is bad stuff, and I’m sorry it’s happened and we have to fix it. My point is not “the military justice system is great with no issues” my point is, the civilian justice system is as bad or worse or at the very least trades one set of very serious problems for another set of very serious problems.

  84. Concerned Defender says:

    Stewie, nice try. But the points you raise are either of minimal consequence to a defendant, or benefit a civilian defendant.  
    I’d far rather have an overworked public defending fighting actual charges with a jury of my peers who must be unanimous, versus an overworked TDS counsel fighting a stacked charge sheet loaded with irrelevant tack-on charges (FTR, disrespect, dereliction, etc) that are often present on charge sheets, with a jury of superiors who have both UCI and incentives to maintain PGOD by convicting me… and barely more than 1/2 needed to convict.  Civilian juries feel no pressure to convict whatsoever.  Some are even pro-acquittal bias against the state.  Not gonna find that attitude in a military panel, who go through mandatory SHARP and other pro-follow-the-rules training, and are probably on a retirement track so have vested interest in their careers, retirement, and the whim of the CG who referred the case to trial.  Not hard to figure out what the CG wants, and the panel is prone to follow the implied UCI. 
    Conviction in civilian courts is actually quite difficult.  And when you get acquitted it’s over. 
    Conviction in the military is an almost certainty.  And in the ~1-5% that get acquitted, they are still subjected to almost certain admin punishments. 
     
     
     

  85. Kafka Esq says:

    stewie, yes, the problems with the civilian justice system are real and significant. But you’re not addressing the true problem  at the root of Barry: the almost complete lack of prosecutorial discretion within the military justice system. I’d take the civilian system, warts and all, with prosecutors who actually have a say in what goes to trial over a military justice system led by careerist officers who have succeeded in a one-mistake military only because they managed to rarely (if ever) make the right — albeit unpopular — decision. And while you may argue that a DA’s discretion is the result of not having adequate resources, well, by not providing a nearly unlimited budget to piss away on frivolous prosecutions like Barry, the state has spoken through its purse strings as to what is a priority.  

  86. Fisch says:

    Stewie,
     
    You mentioned racial bias against minorities a few times.  But, considering that many military towns have a high minority population, that wouldn’t necessarily hold true.  The DA has a hard time getting convictions in the County where I practiced when the defendant is African American.  In fact, there have been quite a few acquittals.  Kafka raises a good point.  I’d take a sane DA with budget limitations who can be voted out of office if he or she wastes the local taxpayers funds taking some of the cases I’ve seen over the past few years get to trial in the military over a politically minded SVP with unlimited federal funds who isn’t concerned with being completely embarrassed at trial or losing a case.

  87. Anonymous says:

    Stewie,
    Yes, one has to “pay to play” when it comes to the civilian justice system with regard to hiring an attorney. However, I would like that option compared to deal with an overworked ADC/SDC that only really starts looking at my case to prep for the trial in depth about 2-3 weeks out from the trial.The “do I have bail money” argument is pretty weak considering I could held via pre-trial confinement by my Commander, who isn’t a attorney or judge. Whereas the bail argument/confinement is made by an actual judge.
    As other have harped on, the lack of prosecution discretion in the military justice system is the most infuriating. I’m friends with a few DA/Assistant DA’s that were prior JAGs. And having them tell me “your case would’ve never seen the light of day in a civilian court room due to the lack of probable cause and lying/backtracking of the victim” was very infuriating. In fact, the PHO stated it was going to be extremely hard for the Government to prove BARD that I committed the Article 120 offense. The CA didn’t care, go to a GCM anyway just to save face of his career and the service from Gillibrand & Co.
    My GCM had people fly all the way from England, Kansas, California, Washington, Florida, Alabama etc to either be an expert or a witness. For whatever reason the SVC had her supervisor fly in from Arizona to “observe” her sit silently for a week in the gallery observing the trial, while the supervisor was busy looking at Pinterest. You factor in lodging, rental cars, GOV’s, and the amount it costs for my trial insane. Again, I’d rather have a DA with marching orders from the State charge what’s a priority, and what is not.
    Another reason why the military justice system is a kangaroo court. Female Sergeant in the Infantry dates/marries someone in her CoC. The CoC finds out, starts an investigation, does an Art 32 hearing. The PHO recommends dismissal of a frivolous larceny and adultery charge and administrative punishment for the fraternization charge. The Commanders that are over her CO recommend counseling instead of punishment. Her CO disregarded all the recommendations and proceeded to a GCM. She was able to strike a plea bargain to NJP, loss of a stripe, and waiver of an Admin Sep board. She’s now being discharged. If one would’ve inserted a attorney in the place of her CO’s recommendation, what would’ve happened? What would’ve you done? Lady Justice is blind for a reason. Sending someone to a trial for larceny, adultery, and fraternization for marrying her now husband is the epitome of the kangaroo that is military justice.
    https://www.nytimes.com/2018/09/12/us/politics/women-marines-infantry-discharge-.html

  88. Fisch says:

    Anonymous,
     
    As a taxpayer, I am often appalled at some of the ways the Government spends my money.  What about when they put the “blind” expert on counterintuitive victim behavior on the stand who knows nothing about the case?  Flying the SVC’s supervisor in to observe the SVC during a trial is as useful as watching paint dry, but I guess the supervisor can actually say she observed the SVC at a trial.   But that is typical for Government workers, isn’t it?  Congress throws money at the JAG Corps and they have to use it or lose it. 
     
    The problem is that these show trials convened to appease Congress and the press expend resources that could be used to get convictions for actual rapists.  Moreover, if a defense counsel takes a bs case panel, then it begins to erode the confidence in the SVP being an honest broker.  Going Judge Alone keeps facts about bs cases confined in the legal office.  Maybe the bailiff goes back to his unit and says, “Man, that was some bs.”  But, it is so much better when you have eight senior ranking NCOs and/or Officers go back to their unit and tell their Soldiers, “I knew that woman was evil the moment she walked into the Courtroom.”  Even if a panel convicts someone for political reasons, that is going to play on their conscience and they might be more inclined to give the next guy a more fair shake.  And when that happens, it raises the likelihood that an actual rapist is going to get off.
     
    That’s one of the problem I see with Gillibrand and the #metoo movement.  They are too short sighted to realize the unintended consequences of their actions in that it ultimately backfires on them.  They think ALL women should be believed, almost to the point of ridiculousness. Gillibrand went on record saying that she believed Emma “Mattress Girl” Sulcowiecz.  Thankfully, people are waking up and realizing that false allegations are a problem.  And, I like having good conservative women who are mothers to boys on my panel.  They don’t buy the bs that lying complaining witnesses are selling.  And, the burden of proof is coming around to being upheld at Courts-martial. Heck, I even had a client who didn’t take the stand get acquitted in my last case.
     
    And at some point the pendulum is going to swing too far and guilty guys are going to be getting off in droves due to a lack of trust in the system.   This is not money well spent unless it is a sociological experiment designed to answer the question of whether a population can be trained to believe people who are not credible and convict.  The answer is initially yes, but it cannot be sustained.
     

  89. Alfonso Decimo says:

    Many of those on this blog like myself were fortunate to serve as a judge advocate when court-martial practice was robust and our leadership were clear-eyed true believers in justice. At that time, most of the judge advocates wanted to gain litigation experience in the courts and admin boards, and we only endured the other areas of practice to fulfill our commitments to service. Now, the numbers of courts-martial are paltry and I do not have confidence in the leadership. I suspect the current MJ practitioners only endure MJ until they can transfer to the other areas of practice. It’s all just symptomatic of the final years of military justice and it probably resembles how the horse-and-buggy manufacturers felt as the automobile industry eclipsed them.

  90. stewie says:

    Wow where to begin:
     
    1. Military DC don’t really start working on a case until 2-3 weeks before trial? Not remotely true, but let’s assume it is. A public defender starts working on your case as he’s sitting down to talk to you for the five minutes you have with him or her to tell you to plead guilty. I’ve seen up first hand with a family member.
     
    2. Military DC are overworked? The average felony caseload for a PD in Florida in 2015 was 500 felonies and 2000 plus misdemeanors. https://www.theguardian.com/commentisfree/2015/jun/17/poor-rely-public-defenders-too-overworked
    That’s almost 2 felonies a day seven days a week and ton of misdemeanors.
    3. PDs run out of funds to pay their attorneys, much less experts or investigation, often run afoul of their own ethical obligations, and according to AG Holder were in a “state of crisis.”
     
    4. Military towns are big minority populations?? Really? First, that’s often BECAUSE of the military. The rest of the population usually is not. Second military bases are rarely in large or even medium sized cities where statistically there are large minority populations. Third, Dallas? New Orleans? Two large cities, with pretty decent sized minority populations, and huge scandals concerning racist DAs.
     
    5. You could be held in pretrial confinement? Yes, you could. But the VAST majority of military accused are not, and the standards for doing so are very strict. You could spend YEARS in pretrial confinement https://www.yalelawjournal.org/essay/pretrial-detention-and-the-right-to-be-monitored#_ftnref1, die like Sandra Bland, have large costs associated with the process, and be jailed for small crimes simply because you can’t pay for bail. Comparing the two as somehow equivalent is intellectually insulting.
     
    6. Actual charges? This idea that prosecutors only bring forth really strong charges in the civilian system is based on what? No, prosecutors there bring BS charges on innocent people all of the time, and then rely on a broken PD system where an overworked defense counsel basically works in hand with the prosecutor to get the accused to plead to something or risk a lengthy jail sentence.
     
    I could go on and on. The civilian criminal justice system only works for those with the resources to hire a good attorney. It DOES NOT WORK for anyone else.
     
     

  91. Kafka Esq says:

    stewie, all the evils you cite are legitimate, but this litany of horribles is not likely to ever come to fruition because I would predict the overwhelming majority of cases that go forward in the military justice system would never see the light of day in the civilian system. 
    You’re not going to be in pretrial confinement for years, and you’re not going to be represented by an overworked PD, because the po-po are going to get the BS allegation, see it as the BS that it is, and do NOTHING with it … and if the allegation ever comes across a DA’s desk, the case is going to die there. 
    Also, as overcrowded as county jails are, you’re telling me that they’re going to house a military member for more than a few days?  As someone who has spent a fair amount of time in county jails (work-related … mostly), trust me, they’d release that staff sergeant the next day because they know they’ll get him back … unlike the meth heads and gangbangers (and, clutch my pearls, those dangerous illegals) who make up so much of the jail population.  The county needs those beds.
    But whatever … military members will continue to get fewer rights than their civilian counterparts, they will be stained with lifelong criminal records and punitive discharges, they’ll have to register as sex offenders, and a lot of them will become part of the crushing problem of homeless vets in our country, but hey, at least some O-3s & O-4s got some good eval fodder on their way to making O-6!

  92. Fisch says:

    Stewie, 
     
    I will address point #4 which appears to be in response to my post.  In Georgia, for instance, you have Atlanta, Valdosta, Savannah/Hinesville, Columbus, Warner Robins, and Columbus which have a large civilian minority population and most are not large urban cities.    Now, you take a place like Minot AFB or Alaska and I agree with you that the only minorities there are because of the base.  But, I don’t think you can use such a broad brush to color say generally that minority Servicemembers are going to be subjected to local racism at a civilian trial.  Not to mention that I haven’t seen nor heard about all the bs cases that the civilians tried.  The point is that if the civilians handled sex crimes for the military, then cases like Barry’s wouldn’t even get to a trial.
     
    I looked up your examples on racist DA’s for Dallas and New Orleans.  I found this article on Dallas’s DA.  He doesn’t sound too racist against minorities to me.  In fact, he took steps to win the release of men who were wrongfully convicted by a DA’s office that was racist 36 years ago.  Maybe Dallas was chock full of racial bias pre-millenium, but that is not the current environment.
     
    Regarding New Orleans, are you referring to New Orleans first African American DA, Eddie Jordan, who was found liable for racial bias in 2005 when he instituted a wholesale firing of Caucasians and replaced them with African Americans?  Or are you referring to DA Leon Cannizzaro?  There was a settlement for a hostile work environment claim for racial bias in 2014, but the major complaints about Cannizzaro is that he strong arms victims into testifying.  Sounds like he wouldn’t be too keen on the Military’s restricted reporting for sexual assault.
     
    But, your point on civilian public defenders being far more overworked than a military TDS counsel is correct.
     
    But, one thing not discussed is how civilian law enforcement investigations exceed MCIOs.  I’ve represented 7 men across two counties in my state since 2015 who were accused of sexual assault.  I vetted them to ensure that I believed they were innocent beyond a reasonable doubt, and they made a statement.  Not one was even charged, let alone indicted by a grand jury.  I thought that each and every one of them should be thankful that the were not military or that the local cops didn’t inform CID about the accusation.  The thing that impressed me most is when I met with them we discussed the exculpatory evidence they gathered and the lack of corroboration they were able to find for the complaining witness’s statement. Military Law Enforcement does a horrible job and a study shows that they are discouraged from searching for exculpatory information.  From the February 2017 Report on Sexual Assault Investigations in the Military:

     
    Recommendation 3: Remove impediments to thorough victim interviews. The Subcommittee heard complaints from all MCIO special agents interviewed that various impediments prevented or discouraged them from conducting victim interviews that were as thorough as they consider necessary. Specifically, they felt procedures and policies discouraged or prohibited investigators from asking any question that could be perceived as “confrontational” during either the initial or the follow-up interview even when, in their professional judgment, such questions were vital to address conflicting statements given by the victim or other evidence contradicting the victim’s account. They also felt investigations were impeded by policies and procedures that discouraged them from conducting follow-up interviews. The Subcommittee accordingly recommends that the Secretary of Defense identify and remove these and any other identified barriers to thorough questioning of the victim by MCIOs or other law enforcement agencies.

     
    Here is part of the specific finding leading to the recommendation above:

     
    In addition, they are discouraged from “confronting” a complaining witness with aspects of his or her account that do not make logical sense or that conflict with other evidence, including the victim’s own inconsistent statements. The investigators stated that, when done appropriately, such questioning is not insensitive and indeed is a crucial investigative practice. As one senior agent explained, in investigative circles “confrontation” is a term of art and does not entail the hostility connoted by the common use of the word. A confrontational, or clarifying, interview involves questions that invite a witness to explain new or inconsistent evidence and statements. While it is clear from the site visits that the Services differ in their approach to this technique, MCIO training, internal practices, or both give many agents the impression that they have to accept the complainant’s account at face value, without thoroughly exploring discrepancies or seeking more detail in the complainant’s account. One MCIO investigator described being trained to investigate the sexual assault “that did happen” and not the possibility that it did not happen. This approach was problematic, the special agent implied, because it could lead them to overlook important facts and evidence, obscuring the reality of what had occurred. 
     

    I’ve always believed that a Court-martial for an Article 120 offense begins at the moment a Servicemember is accused by the complaining witness to a MCIO.  I have found the civilians in the current era are far more thorough than MCIOs.
     
    By the way, any word on Senator Gillibrand’s reaction to Barry’s charges being dismissed with prejudice?  I think I hear crickets…..

  93. stewie says:

    So let me make sure I have this straight, you think an African American in Georgia doesn’t have to worry about racism in the criminal justice system.
     
    In Georgia.
     
    That’s your position.
     
    Wow.

  94. Fisch says:

    Now Stewie, loosen your grip on your pearls.  Did I say that African Americans don’t have to worry about racism in Georgia (period)? The context to which I referred is that civilian juries in Georgia will be made up with quite a few African Americans, unlike it was back in the 70’s where the ADA wrote an “N” next to the African American jurors, then cut them. DAs like that today would be exposed and fired rather quickly, even in a smaller town. And I think evil white devils who are jurors know better than to bring their fading brand of racism into the deliberation room nowadays.  
     
    I’m not saying that Soldiers would fare better in the civilian system beyond a doubt.  I think Kafka raises a good point in that cases wouldn’t get to trial.  If it did get to trial, then racism would be of no concern to me.  In fact, my only civilian jury trial was in district court.  My AA client was apprehended from his vehicle on post by a Caucasian MP who testified he was trying to get his care unstuck from the mud at midnight.  He blew a .25. He was unanimously acquitted by the 1/4 AA Jury in 27 minutes.  I wasn’t worried about racism.  If I were a Soldier who couldn’t afford an attorney, I would be far more concerned with an overworked PD than racism.
     

  95. stewie says:

    You know what’s annoying? Strawmen. I said four sentences. In not one did I say anyone said that AAs didn’t have to worry about racism in Georgia “period.” Yet you led with that non sequitur. Why is that?
     
    While you are answering that, please go ahead and cite that the average jury in Georgia is 1/4 AA.
     
    While you are answering that, please tell me what the percentage of folks who plead guilty in the civilian criminal justice system, and why you think that it is that percentage (spoiler alert, it’s really high…double spoiler alert, a lot of minorities and poor whites plead guilty).
     
    Then explain to me the link between minority status (or poor white) and the ability to get quality legal representation. Explain to me how that’s not part of racism in the criminal justice system.
     
    Then explain to me whether the DAs are white or black for the most part in a lot of places, and how they decide how to bring charges, or what sentences to argue for. Explain to me why minorities routinely receive longer sentences for similar crimes, get pulled over more and “searched for drugs” even though drug use has almost no racial difference statistically?
     
    And as an AA who has lived in Georgia, has had relatives in GA, forgive if I don’t find your one case particularly dispositive.

  96. stewie says:

    https://www.npr.org/2015/11/02/452898470/supreme-court-takes-on-racial-discrimination-in-jury-selection
     
    “And in Houston County, Ala., prosecutors between 2005 and 2009 used their peremptory strikes to eliminate 80 percent of the blacks qualified for jury service in death penalty cases. The result was that half of these juries were all white, and the remainder had only a single black member, even though the county is 27 percent black.”
     
    “At Timothy Foster’s trial in Rome, Ga., the prosecutor used four of his nine peremptory strikes to knock out all the qualified black jurors in the jury pool. The defense cried foul, but the trial judge and every appellate court after that, including the Georgia Supreme Court, accepted the nonracial reasons. The prosecutors gave as many as a dozen reasons for striking each black prospective juror. These justifications included things like “failure to make eye contact,” looking “bored,” being “divorced,” or “a social worker,” and so on.
    The appellate courts continued to accept these excuses even after Foster’s lawyers obtained the prosecutor’s notes in 2006 under the Georgia Open Records Act. It is rare that defense lawyers ever see these notes, and in this case, the prosecution’s worksheets were not subtle.”
     
    “Judges seem to have a high threshold for seeing racial bias, even in supposedly liberal states. In California, for instance, the state Supreme Court has dealt with 114 Batson appeals since 1993, according to court opinions, and in only one case out of the 114 did the state’s highest court find evidence of racial discrimination.”

  97. Herbert Stock says:

    Thank you Fisch – I agree that at first glance it appears that there are similarities between the Barry case and the Australian case you cite; but, in fact they are quite dissimilar. The reasons for this lie in the differences between the Australian and American systems of government and military law – and this is not the place for a dissertation on comparative governance. But, in summary, the reasons are:
    At the time of these events Steven Smith, while being the elected representative for an electorate (district) in the House of Representatives, was also Minister for Defence in the Rudd Government, a role akin the your Secretary of Defence. As such he was the civilian head of Australia’s military forces and had a consitutional duty to intervene in military legal matters if there appeared to be a problem.
    At the time of Smith’s involvement, Brigadier McDade (Brigadier is a field grade, not a General Officer grade) was conducting an investigation into an incident in which an army patrol in Afghanistan came under fire from insurgents and responded even though the patrol leader knew that this would place non-combatants at risk. In fact in the exchange of fire non-combatants were killed. McDade was conducting the Australian equivalent of an Article 32 hearing to determine whether charges, and what charges, should be laid. The issue was extremely complicated and McDade dragged it out for over two years before Smith intervened and pressured McDade into doing something – he considered that leaving the to NCOs involved dangling was wrong. Charges were laid and the matter then progressed to the prosecution service (involving high powered civil and military review) which determined that the charges should be dropped and the NCOs resumed normal duty.
    The complications were twofold. Firstly, the main evidence against the NCOs came from their after action reports – these are confidential and require soldiers to make full disclosure of their actions – the rationale being that in the interests of proper understanding of the enemy and to assure intelligence for future operations absolute frankness was required. The liability of soldiers to prosecution on the basis of these reports (leading to other soldiers withholding information) was an issue of first impression. As well, the responsibility for combatants to avoid civilian casualties, even at the risk that the enemy might escape or that servicemen might be harmed, was also an issue of first impression.
    Australia is a common law jurisdiction and there was no relevant statute law so that Brigadier McDade could not decide what do – prosecute and have the judge (or the subsequent appellate bench) rule the evidence inadmissible or rule that, as a matter of public policy, the soldiers’ actions were justified, or let it go and have unfriendly press and sections of the public pillory her for her inaction. Smith, as civilian head of the armed forces intervened after more than two years and forced the matter forward. At that point better legal minds intervened and the charges were dismissed at arraignment, thus preserving the integrity of the after action system and the duty of combatants to pursue their mission even at the risk of civilian casulties.
    I hope you will agree this is different to a VADM ‘advising’ a RADM to turn a blind eye to an injustice.
    Others have said that Australia and the United States are two friends divided by a common language – this is one such case.

  98. Fisch says:

    Stewie,

     
    You know what’s annoying? Strawmen. I said four sentences. In not one did I say anyone said that AAs didn’t have to worry about racism in Georgia “period.” Yet you led with that non sequitur. Why is that?
     

    I’m sorry.  Let me clarify:  “Now Stewie, loosen your grip on your pearls.  Did I say that African Americans don’t have to worry about racism in the criminal system in Georgia (period)? The context to which I referred is that civilian juries in Georgia in military towns will be made up with quite a few African Americans, unlike it was back in the 70’s where the ADA wrote an “N” next to the African American jurors, then cut them.”

     
    While you are answering that, please go ahead and cite that the average jury in Georgia is 1/4 AA.
     

    I only have the one case that I tried, but I do know that the procedures used to select the jury pool in Georgia changed in 2011

     
    While you are answering that, please tell me what the percentage of folks who plead guilty in the civilian criminal justice system, and why you think that it is that percentage (spoiler alert, it’s really high…double spoiler alert, a lot of minorities and poor whites plead guilty). Then explain to me the link between minority status (or poor white) and the ability to get quality legal representation. Explain to me how that’s not part of racism in the criminal justice system.

     
    Sounds like this isn’t a racial issue, but rather a poverty issue.  I grew up a poor white kid who didn’t even know the name of his father until I came back from Desert Storm.  I, too, would have been stuck with a public defender if I were ever arrested.  It’s not because of the color of my skin.  So, my inability to get quality legal representation has no relation to racism in the criminal justice system.
     

    Then explain to me whether the DAs are white or black for the most part in a lot of places, and how they decide how to bring charges, or what sentences to argue for. Explain to me why minorities routinely receive longer sentences for similar crimes, get pulled over more and “searched for drugs” even though drug use has almost no racial difference statistically?

     
    I don’t know about the racial composition of DAs or what they consider in the arguments.  If I were DA, then I would want a diverse office. I don’t know any DA today who wants an all white office of prosecutors.  I don’t know why minorities receive longer sentences for similar crimes.  Could it possibly be that more minorities live under the poverty line and rely on a public defender?  

     
    And as an AA who has lived in Georgia, has had relatives in GA, forgive if I don’t find your one case particularly dispositive.
     

    So, should I likewise not find your story about your relative and his experience with the public defender particularly dispositive?   Of course, I should consider what you are saying and relate it to other factors that are current. 
     
    To get back to my original point.  I think that having a diverse population relates to a diverse jury.  Military towns are typically more racially diverse than other towns.  Since 2011 in Georgia, there is a law to ensure that the 159 counties select a pool of jurors that closely mirrors the racially composition of the county.  If there are black jurors in the deliberation room, then the possibility of racial bias entering into the trial decreases immensely.  The examples of injustice you cited above are for cases or studies almost decade or decades old.  Therefore, I would disagree that the civilian justice system would be unfair for a minority Servicemember because of racial bias.  I do agree that a civilian sex assault charge would be more unfair for the lower enlisted folks IF the case went to trial and they had to rely on a public defender because of their low income.  But, overall, I think that the civilian system is a bit more sane than the military when it comes to sexual assault prosecutions, so most of these cases would not see the light of day. 

  99. Fisch says:

    Herbert, 
     
    Thanks for your thoughtful response.  That was quite the lesson on the political makeup and rank structure in Australia.   Because of your well informed explanation, I went from thinking “Fair suck of the Sav” to “Good on ya, Mate.”

  100. Concerned Defender says:

    I disagree with the bulk of Stewie’s points and will counter with another K.O. blow to add to my long list of reasons above.  Fairness.
     
    I have never seen or been made aware of a single woman charged with sex assault in the military.  Not. One.  Anyone have one, or more, they can cite??   Women service members drink, they have sex – often with drunk men.  Yet why the lack of assault charges against women?? 
     
    Nor have I seen or heard of a single false accuser of sex assault charged with false statements or swearing of a crime.  I’ve seen plenty of recanted assault allegations, or changed statements of accusers (ie normal people would call them lies). 
     
    Far different in the civilian world.  We regularly see female sex offenders charged and convicted, and have started seeing more commonly false accusers charged and convicted.  And while their sentences are disproportionately lower, it’s a start.  
     
    So stewie, with thousands of men charged in sex crimes annually in the military, seems we should easily have a representative portion of women charged.  Where are they?  
     
    Second topic:  The best defense is more helpful in a civilian trial than in military.  Given the stacked deck in the military (as I mentioned above) even the best legal team cannot generally secure and acquittal.  It’s unheard of in a Judge Alone.  And nearly impossible in a panel case when only barely over half have to agree to convict.  In the military the contested prosecution conviction rate is extremely high, and acquittals are extremely rare.  I’ve seen cases that should clearly be acquittals end up convictions – and not just my own.
    Contrast that to the civilian world where a great defense team often walks out with acquittals on very hard cases that would have probably been convictions in the military.  OJ Simpson comes to mind.  But there’s other high profile cases with big defense teams that beat the charges.  Not so in the military.  Plenty of high profile cases, and they almost all end up convictions.  
     
    Turns out that 2/3rds vote, combined with career superiors on the panel and the obvious UCI is powerful stuff.
     
    PS – I’m the special 100th comment!

  101. Burt says:

    Concerned Defender,
      As for acquittals for sexual assaults you obviously don’t review results of trial.  Try here – http://www.jag.navy.mil/news/ROT.htm
      I’ll save you some time: 
         June – At a General Court-Martial in Oak Harbor, Washington, an E-3 was tried for rape.  On 11 June 2018, the panel of members returned a verdict of not guilty. 
          May – At a General Court-Martial in Norfolk, Virginia, an E-3 was tried for sexual assault and abusive sexual contact.  On 7 May 2018, the panel of members returned a verdict of not guilty.
          May – At a General Court-Martial in San Diego, California, an E-6 was tried for one specification of sexual assault.  On 3 May 2018, the panel of members returned a verdict of not guilty. 
          March – At a General Court-Martial in Great Lakes, Illinois, an E-6 was tried for one specification of rape of a child, and two specifications of sexual abuse of a child.  On 15 March 2018, the panel of members returned a verdict of not guilty.
          March- At a General Court-Martial in San Diego, California, an O-3 was tried for six specifications of sexual assault.  On 15 March 2018, the panel of members returned a verdict of not guilty.
          Feb – At a General Court-Martial in Oak Harbor, Washington, an E-4 was tried for rape. On 28 February 2018, the panel of members returned a verdict of not guilty.  
         Feb –  At a General Court-Martial in Yokosuka, Japan, an E-3 was tried for sexual assault and abusive sexual contact.  On 28 February 2018, a panel of members returned a verdict of not guilty.
        Jan – At a General Court-Martial in Washington, D.C., an E-6 was tried for sexual assault. On 26 January 2018, the panel of members returned a verdict of not guilty.
       Jan – At a General Court-Martial in Naples, Italy, an E-5 was tried for two specifications of sexual assault.  On 26 January 2018, a panel of members returned a verdict of not guilty.
          You can research the rest yourself.  The results of trial go back to 2013. 
         Members take their oaths seriously to try and sentence.  If you ever bother to debrief with them you’d realize that. 
     
     
        

  102. Vulture says:

    CD.  I hate to try to one up you.  Here goes…
    “Members take their oaths seriously to try and sentence.  If you ever bother to debrief with them you’d realize that. ”
    But CD says that acquittal is unheard of in judge alone, a la sex crimes.  Member/Judge… 
     
    Cheer up.  You’ve only got 60 more months to look through.

  103. Reality says:

    It’s actually really easy to prove CD wrong. The services post the results of all courts-martial. Here are the Air Force results from last November. https://www.afjag.af.mil/Portals/77/documents/CM_Summaries/Court-Martial_Summaries_(Nov_17).pdf?ver=2018-02-01-071215-990 
    10 acquittals in one month for sex assault/rape cases with four being judge alone. Took two minutes to find four judge alone acquittals adjudged in just one month in just one service. Hardly “unheard of.”
    As for the claim the deck is stacked, last year only about 40% of all sex assault cases actually referred to a court-martial resulted in a conviction of a 120 offense. About 20% of cases resulted in NG for all offenses including any non 120 charges such as drug use or other crimes that were also charged. Again the data is published every year and easily accessible. Moreover, contrary to what many claim, the vast, vast majority of allegations never go to court. Last year only 8% of the 5100 allegations went to court and only 166 were actually convicted of a nonconsensual sex offense. And BTW CD, an acquittal in the civilian world also has to be unanimous, not just the conviction. No 1/3 plus one minority for a not guilty. 

  104. stewie says:

    Oh for cripes sake…I’ve seen false accusations by a female Soldier successfully prosecuted at trial, and that was back in 2010/2011.
     
    I have two allegations of minor sex assault/contact in the last six months by women, both of whom are out of the military now because of their misconduct.
     
    Here’s a newsflash for you. The vast, vast majority of sexual assaults are committed by men. Sucks I know, kinda makes our team look bad. But there it is. Pretending that there’s this secret conspiracy to hold down all those female sex assaults is pretty much late night FM radio Coast-to-Coast/Alex Jones talk.
     
    And can you go ahead and substantiate/define your claim that we “regularly see women in the civilian world prosecuted for sex assault” please? Thanks, I’ll hang up and listen over the radio.

  105. Anonymous says:

    Can a DA hand pick a jury members, before voire dire, like a CA can? So, say you have sexual assault of a child, does the DA have access to jury data sheets like a CA does? To find information on potential jury members like say, have children on their own. If not, then add another reason why I’d take my chances with a civilian trial compared to a military one. My trial had a female MJ, female STC, and out of 6 panel members after voire dire, had three female FGO’s left. That’s after two were cut via voire dire. I’m sure it was just a random occurrence, right? 

  106. Concerned Defender says:

    @ Burt – appreciate the research, but those are anecdotal.  With hundreds or perhaps thousands of sex assault allegations prosecuted annually, citing 9 acquittals is not compelling.   News I cited above pegged it at ~6,000 sex assault accusations.  So that’s thousands of Joe facing trial or discharge not necessarily on the merit of the evidence but on political pressure, from an allegation number that doubled in a few years from ~3,000.
    @ Stewie.  Answer honestly.  Man and woman equally drunk and have sex.  No obvious evidence of assault.  This is a legit intellectual question.  How can one person and only one person (universally the man) form criminal intent and not be a victim, whereas the other cannot form criminal intent but must be a victim (universally the woman)?  I thought we were equal under the law.  Are women somehow less criminal?
    Secondly, is there any other area of life where getting drunk absolves a person of HER behavior and bad decisions (dui, murder, theft?)?  This is a bona fide genuine problem, next only to the fact that consent apparently can be withdrawn whimsically a decade later… that’s another discussion. 

  107. Concerned Defender says:

    So, we have 1 female prosecuted successfully for a false accusation nearly a decade ago… In thousands of rape prosecutions and even some % of acquittals, we’re collectively aware of 1 false accusation prosecuted 8-9 years ago.  Point and match.   Unicorn event.

  108. Herbert Stock says:

    With respect, and after the discussion of differences between jurisdictions, could someone please guide me as to what happens to the Senior Chief (I presume he gets his rank back) now.

  109. Philip D. Cave says:

    Herbert, based on current and past experience—in fact I’m about to file a motion in a case where the following has yet to happen.
    He should be returned to his prior rank while they decide what to do with him.
    He should return to his prior pay status, and he should be getting a check for back-pay.  The back pay will take a little longer to figure out while they audit his pay account.  In the U.S. any forfeiture of pay does not begin until 14 days after the punishment is announced.  Sometimes by then the client overpaid.

  110. Charlie Gittins says:

    The pay is supposed to be returned within 60 days of the CA decision not to retry or return of record to the JAG after dismissal according to the DoD Pay Manual.  In the couple of cases I have had where “restoration” was ordered or required they were not even close.  I have a case in Fed Claims Court where they still have not paid the client nor discharged him properly (they issued him a BCD that had not been approved by the CCA when the charges were set aside and a new trial ordered.  Perez v. United States.
     

  111. Burt says:

    CD – not sure the published reports of the results of trial are “anecdotal.”  If comparing published results of acquittals to tried cases, which you can do also with some elbow grease b/c they are also, surprise, published, is anecdotal I guess I am missing out on something
    At the 50,000 foot level I get your arguments – men are targeted for sex assault and women are not held accountable for lies – but given that the majority of cases are not tried and those that are tried, either with MJ alone or members, do not result in the way you seem to think they do (all convictions) perhaps you should pause to consider why this is? Perhaps the world is not so black and white and populated by evil people simply waiting to do evil when they can as demanded by their masters. 
    People who simply espouse the systems is rigged/beyond repair/etc….  irrespective of facts and experience are just as detrimental to the system as those who believe every sex assault is genuine. Neither of those stances protects accuseds or brings justice to actual victims. 

  112. Vulture says:

    Reality.  Concerned Defender’s and my disagreements are epic.  But it’s not fair to put him on an unlevel playing field where one end is at 50 K feet.  (not saying Burt is wrong).  To that end, there are counter arguments to everything that you say.
    1) Where it takes 1/3 + 1 to acquit, the civilian world doesn’t see a whole bunch of uncharged misconduct presented to prove guilt.  Even if it does, prosecution arguing “Hey this a pretty good deal, I can commit a rape and get away with it, so I will commit it again.” isn’t taken to kindly to.  And where it is, they aren’t trying rape cases that go to acquittal in a court-martial under the dual sovereignty argument.
    2) Where the male and female are both drunk, the posters on the site have been so particular as to carry the conversation into whether the female was just drunk or throwing up drunk.  What freaking difference does it make?  Also, the Briggs case had two wasted service members and it came down to a pretext phone call in the question of rape, not the female’s intoxication.
    3) As for the website, you have my commendations for going through five years of cases quickly.  Does the site have commentary about how regrettable it is that “we can’t prosecute all the (sexual assault allegations)”  Thousands of complaints but the Sec Def is asserting that there are not enough courts-martial.  
     
    Which brings me back to the issue that is relevant to the Barry case and this thread.  UCI and whether it is prosecuted due to unlawful influence or not handled properly due to same.  Whether UCI comes from Congress, or poor judgement on the part of a DJAG, or errant commanders it is still UCI.  Government lost here, and they should have.  It was the very ugliness that I think CD is complaining of that caused it.
    Cite any statistics that you want from web pages.  In fact I’d be happy for you to find all the empirical data you can find.  Some of my buddies in the Computer Engineering PhD program are looking for data train a machine learning program – how to spot a lie!
     
    But the playing field can’t be level when the “failure of leadership” comes from fear of the Congressional temper tantrum, command lack of responsibility, or judge advocates that should have known better.   
     

  113. stewie says:

    Vulture. A woman is drunk. And I mean incapacitated drunk, not loosened inhibitions drunk. Passed out or incoherent drunk. Does she or does she not have a right to not have a man have sex with her? Yes or no?
     
    If your answer is yes, then what does it matter that the man was drunk? He clearly was not drunk enough to get it up and put it in, and plenty of sober men have some challenge doing both from what I hear.  Two incapacitated people can’t have sex.
     
    So it’s plenty reasonable to place the blame on the male when the woman is drunk WHEN she’s incapacitated, and thus yeah it matters a lot the details of how drunk she was, and not really about how drunk he was, because if he were incapacitated, he’s not getting it up or putting it in.

  114. davinajenkins says:

    Aside from all the back and forth, any thoughts on Jim Crawford’s retirement?  Case dismissed with prejudice because he screwed the pooch and he walks out the door a week later.  A ship CO bumps another ship, they’re out.  Accident or otherwise.  Doesn’t seem right.  

  115. djLaw says:

    Aside from all the back and forth, any thoughts on Jim Crawford’s retirement?  Case dismissed with prejudice because he screwed the pooch and he walks out the door a week later.  A ship CO bumps another ship, they’re out.  Accident or otherwise.  Doesn’t seem right.  

  116. Concerned Defender says:

    Stewie said:  Vulture. A woman is drunk. And I mean incapacitated drunk, not loosened inhibitions drunk. Passed out or incoherent drunk. Does she or does she not have a right to not have a man have sex with her? Yes or no? If your answer is yes, then what does it matter that the man was drunk? He clearly was not drunk enough to get it up and put it in, and plenty of sober men have some challenge doing both from what I hear.  Two incapacitated people can’t have sex. So it’s plenty reasonable to place the blame on the male when the woman is drunk WHEN she’s incapacitated, and thus yeah it matters a lot the details of how drunk she was, and not really about how drunk he was, because if he were incapacitated, he’s not getting it up or putting it in.

     
    Stewie, you’re moving the goal posts here.   Folks often take the most extreme position to try to argue their points, as you have done.   The “stranger in the bushes attacking a woman,” argument represents almost zero rape scenarios.   Nevertheless, that is clearly wrong.   I doubt anyone would disagree that is a sex crime. But it’s rarely that simple.   
     
    More often than not, it’s a matter of two mildly intoxicated adults engaging in what rational people would consider consensual acts after their own voluntary “social lubrication” i.e. having a few drinks.  Congress-critters most certainly do this and don’t go to prison.  Yet for the average JOE there’s a massive risk involved in this mating behavior that goes on in colleges and life for 20 somethings with minimal risk of prison or ruined life.  
     
    True sex crimes are horrible.  The sad reality is the fact patterns seem to generally be of the flavor of the woman voluntarily went out or put herself in a position to meet a man and hook up, voluntarily had a few drinks, and met a man and hooked up.  Sometime thereafter, and in some cases that is months or years later (due to SHARP training, regret, incentives for a PCS or promotion, or she gets in trouble for something, or her husband finds out about it, or she wants VA disability benefits, etc.), she claims she was assaulted.  And this complaint is often in the face of plain obvious evidence of consent!  That kicks of a monster that often drags the man thru the mud and likely ruins him.  And anyone who practices this area has certainly seen numerous cases of consent withdrawn only weeks or months later, from what were plainly consenting behavior.  Those cases should be summarily ignored as lacking probable cause – yet they aren’t in the military.  They end up at trial.  That is wrong.  And that appears to be the Barry case – plain consent, withdrawn at a later date.
     
    In moving your goal posts, you have NOT YET even answered the question posed in Barry.  Read the facts.  Does this even approach probable cause for a sex crime?  I’d love to hear the best evidence this was a sex crime and warranted referral. 
     
     

  117. anonymandus says:

    DJLaw, Interesting question regarding TJAG retirement.  The 5 Sep Navy Times Article indicated: 1) leaked TJAG retirement would be on 12 September, 2) Barry’s attorney urged CNO to place TJAG on legal hold and institute legal proceedings against him, and 3) Navy PAO responded that they were aware of and still reviewing CAAF’s Barry decision. 
    I think it comes down more to retirement grade determination (RGD) than charges and therefore I am guessing either: 1) there was an informed decision to take no action, or 2) SECNAV decided that 3 Stars was the appropriate grade, or 3) staff didn’t finish their review before 12 Sep, or 4) maybe RGD can be retroactive and review is still pending? 
    Public Affairs is obviously in a respond to query only mode and it appears there is not any Congressional interest nor even any follow-up media interest yet.  Also, I suspect there may be other factors constraining what the Navy can say (e.g. seal or other similar court cases or issue pending or the junior JAG grievance(s) alluded to in Barry’s brief).  It is probably not in the Navy’s interest to go active public affairs at this time, but there is always the chance some action was taken and just not published. 
    Personally, I was disappointed this case had to go to court at all because it was so avoidable (easy front end SJA fixes).  Then I was shocked CAAF’s order didn’t allow the government the option to determine factfinding was impractical and dismiss (another fix).  Then I was surprised CAAF issued Barry opinion last, the week before JAG retirement (quite a coincidence).  
    LtGen Franklin lost a star at retirement for admin reasons… he did not complete required time in grade or request a waiver.  Other flag officers under a cloud have been reduced in retirement due to being temporarily reassigned and not meeting the strict billet requirements for retirement grade.  Navy TJAG billet and tour length is structured to ensure eligibility for direct 3 star retirement.  

  118. djLaw says:

    anonymandus,
     
    What part of Barry’s brief alluded to junior JAG grievances?  Just curious.  I must have missed that.

  119. anonymandus says:

    DJLaw, here are some of the parts of appellant’s brief that I only suspect may allude to a grievance (reading between the lines):
    1)  “judge-advocate whistleblowers”
    2) “…the government argued the UCI found by the military judge was manufactured by junior officers “warping the facts” and making up “their own fiction.” [govt excerpt below]
    3) “LCDR Dowling detached from Navy Region Southwest on June 9, 2017.  In his detaching fitness report, CAPT Larrea elected not to use the more favorable language that CAPT King had submitted to her.  When LCDR Dowling inquired as to why CAPT Larrea had done so, she told him he had “trouble letting issues go,” “your work has suffered because of Barry.”
    4) “[The government] …argued that VADM Crawford did not advise RADM Lorge and that to assert otherwise was “simply just a fiction, a warping of facts to fit an agenda.” “And it’s embarrassing today for the Navy JAG Corps that we have an SJA, deputy SJAs, trial-defense counsel, military judge, appellate-defense counsel swirling around, creating unnecessary issues in a post-trial process.” “Given the government’s acknowledgement of the possibility of unlawful command influence in SOCS Barry’s case, its trial strategy to present the whistleblowers in this case as “peripheral people” involved in a “double-triple-hearsay evolution,”…”
    4) “…the government took steps to cloak its misconduct in attorney-client privilege and limit the testimony of witnesses like LCDR Dowling.” (detail in reply brief)
     
    Government brief says:
    1) LCDR Dowling testified that he remembered the precise words. “[W]hat I do remember 100 percent was the ‘target on my back’ comment[.]” RADM Lorge’s decision to approve the findings after the meeting surprised LCDR Dowling, as did “the content of the discussion, which is why the comments were so memorable for him.”
    2) VADM Crawford testified that he did not make that statement. And RADM Lorge testified he did not remember VADM Crawford making that statement. There is no evidence of this statement other than LCDR Dowling’s hearsay testimony and LCDR Dowling’s Declaration making, again, the hearsay assertion that RADM Lorge told LCDR Dowling that VADM Crawford said not to “put a target” on his back, or something to that effect.
     
    Whistleblower does not necessarily mean grievance, but one possible agenda of a DSJA sharing his FITREP and chain of command woes with defense counsel could be to lay groundwork for one.
     
     
     
     
     

  120. Alfonso Decimo says:

    LCDR Dowling is potentially my new hero. Apparently, other judge advocates were better at “letting issues go” when it those issues might result in the embarrassing revelation of actual UCI by the DJAG.

  121. Vulture says:

    Stewie.  The counter argument to your physiological one is that if the girl was awake enough not to aspirate her own vomit, she was able to consent.  That’s might be a treacherous argument, but if we are talking in terms of “it provoke the desire but take away the performance” it is just the “great equivocator” leveling the playing field. 
     
    That being said, perhaps the male and female roles are a discussion left to a different day.  This whole #me_too thing has be going “Where were you?” and Congress’s current course isn’t helping.

  122. stewie says:

    Vomiting is not a sole factor. It’s an indicator of the level of alcohol drunk because it’s a reaction to significantly excessive drinking by the body in most cases. So once someone is vomiting they are pretty darn close to incapacitation.
    And incapacitation does not require unconsciousness.

  123. vulture says:

    Fair enough.  The military has a drinking problem.  Not a sexual offense problem.

  124. TJD says:

    The government filed a motion for reconsideration, dredging up the same arguments already made. Apparently if they say it thrice it must be true. Let it be never be said that the United States loses with grace and humility.

  125. Anonymous says:

    So if two people are incapacitated, not unconscious, then neither could possibly give consent to each other. So no assault could happen!