Top Ten Military Justice Stories of 2018 – #2: The incredible reversal of Senior Chief Barry’s conviction of sexual assault
After Senior Chief (E-8) Barry was convicted of sexual assault in violation of Article 120(b), by a general court-martial composed of a military judge alone, and was sentenced to confinement for three years and a dishonorable discharge, the convening authority – Rear Admiral Patrick Lorge (who later retired) – approved the findings and sentence as adjudged. The Navy-Marine Corps CCA then remanded the case for a new action because Lorge’s Staff Judge Advocate (SJA) erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence.
On remand, Lorge took a closer look at the case, and he developed concerns about the result of the trial. Barry was convicted of sexually assaulting a woman with whom he had an ongoing sexual relationship and under circumstances that raised the defenses of consent and mistake of fact as to consent. Lorge thought about reversing Barry’s conviction, but the 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. As Lorge later recalled, Crawford advised him that approving the findings and sentence in Barry’s case was the appropriate course of action.
Ultimately, Lorge did again approve 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 language to his convening authority’s action that questioned the fairness of the trial and the appropriateness of the sentence (though not the sufficiency of the evidence), and that encouraged the Navy-Marine Corps CCA to either remand the case for further proceedings or to disapprove the adjudged punitive discharge (but not to dismiss the charge outright). Lorge, of course, could have done any of those things, but didn’t.
And neither did the CCA. In a lengthy opinion written by then-Chief Judge Palmer, the Navy-Marine Corps CCA rejected numerous assignments of error and affirmed the findings and the sentence. United States v. Barry, No. 201500064 (N.M. Ct. Crim. App. Oct. 31, 2016) (link to slip op.). A few months after that, CAAF summarily affirmed the CCA’s decision. 76 M.J. 269 (C.A.A.F. Apr. 27, 2017).
Sixteen months later, however, CAAF reversed Barry’s conviction and dismissed the charge with prejudice, in United States v. Barry, 78 M.J. 70 (C.A.A.F. Sep. 5, 2018) (CAAFlog case page).
That incredible change of fortune (and the reasoning for it) is the #2 Military Justice Story of 2018.
The reason for the reversal is at the confluence of the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012) and unlawful influence in the military justice system (the #5 Military Justice Story of 2017).
After CAAF summarily affirmed Barry’s convictions and sentence in early 2017, Lorge changed his tune. In an affidavit provided to Barry’s defense counsel and dated May 5, 2017, Lorge claimed that he “had serious misgivings about the evidence supporting this conviction” and that he originally “was inclined to disapprove the findings” but, he wrote:
I perceived that if I were to disapprove the findings in the case, it would [adversely affect the Navy. 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. Even though I was convinced then, and am convinced now, that I should have disapproved the findings, my consideration of the Navy’s interest in avoiding the perception that military leaders were sweeping sexual assaults under the rug outweighed that conviction at the time.
78 M.J. at 80. Lorge also provided details of a conversation with “VADM Nanette DeRenzi, the then-Judge Advocate General of the Navy, [who] expressed a similar concern to me about the reputation of the Navy in a conference in my office . . . . She conveyed the importance that convening authorities held and how tenuous the ability of an operational commander to act as a convening authority had become, especially in findings or sentences in sexual assault cases due to the intense pressure on the military at the time.” Id. And Lorge explained that he also “discussed the case with then-RADM Crawford, who is now the Judge Advocate General of the Navy.” Id. Lorge concluded the affidavit with a request that CAAF “forgive my failure in leadership and right the wrong that I committed in this case against Senior Chief Barry; ensure justice prevails and when doubt exists, allow a man to remain innocent.” Id.
CAAF took notice. The court granted a petition for reconsideration of its summary decision, granted review of whether Lorge’s action was the product of unlawful command influence, and ordered a post-trial factfinding hearing with a presiding officer who “shall be a military judge from an armed force other than the United States Navy or United States Marine Corps.” 76 M.J. 407. Then, after the factfinding hearing, CAAF ordered briefing on two issues and the court heard oral argument on March 22, 2018. After argument, CAAF deliberated for more than five months. Its ultimate decision was a bombshell.
Chief Judge Stucky wrote for a three-judge majority of the court (although all five judges agreed that Barry’s convictions must be reversed), and the first sentence of his majority opinion explained the remarkable nature of the case:
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.
78 M.J. at 72. Yet Lorge’s self-described failure of leadership was not what led to the reversal of Barry’s conviction. Rather, Barry’s conviction was reversed because Crawford unlawfully influenced Lorge’s decision as convening authority.
Explaining that a DJAG (which Crawford was at the time of his conversation with Lorge), “just like any other military member, is capable of committing unlawful influence,” 78 M.J. at 76, Chief Judge Stucky’s majority opinion concluded that Crawford did commit unlawful influence, even if unintentionally:
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 even if effectuated unintentionally, will not be countenanced by this Court. 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. . . . In this case, because the impact of RADM Crawford’s unauthorized guidance on RADM Lorge’s action is undeniable, we cannot escape the conclusion that actual unlawful influence tainted Appellant’s case.
78 M.J. at 78-79 (marks and internal citation omitted). Then, considering “the facts and circumstances of this particular case,” the majority concluded that “nothing short of dismissal with prejudice will provide meaningful relief.” 78 M.J. at 79.
Judges Ryan and Maggs dissented, but not because they found that Barry’s convictions should be affirmed. Rather – as Judge Ryan explained in an opinion that Judge Maggs joined – they agreed that Barry’s conviction “should not, and may not, stand,” but they criticized the majority’s decision to dismiss the charge with prejudice as a remedy for unlawful influence as having “no basis in the law.” 78 M.J. at 80. Judge Ryan concluded that there was no actual unlawful influence, but rather that Lorge’s action in the case was “ambiguous and erroneous” and should be replaced with “a corrected action disapproving the finding of guilty.” Id.
Either way, however, Barry was free.