Argument Preview: Was the convening authority’s action tainted by unlawful influence, in United States v. Barry
CAAF will hear oral argument in the Navy case of United States v. Barry, No. 17-0162/NA (CAAFlog case page), on Thursday, March 22, 2018, after the argument in Kelly. Two issues question 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.
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 Lorge – approved the findings and sentence as adjudged, but the case was returned 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 reached out to then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (JAG) of the Navy and with whom Lorge had previously served. Crawford later became the JAG – a position he still holds – and was promoted to Vice Admiral. Accordingly to Lorge, Crawford advised Lorge against reversing Barry’s conviction.
Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at the rank of 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.
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 impartially [sic] 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[.]
Appellant’s Br. at 2 (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 acted 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 he wanted to disapprove the findings of the court-martial, however he did not do so because of pressure based on the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure is said to have been Lorge’s discussion of the case with Crawford. Barry’s defense 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 late last year (discussed here).
CAAF then ordered briefs filed on the issues shown above that functionally ask a single, two-part question: Could Crawford (then the DJAG) unlawfully influence Lorge, and if so then did he?