CAAFlog » Court-Martial News » SOCS Barry

We’ve been watching the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. All our coverage is available here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding by a military judge from a different service. Air Force Military Judge Colonel Vance Spath, who is Chief Trial Judge of the Air Force, got the assignment.

Judge Spath’s fact-finding is now complete, and the Washington Times publishes it here.

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We’ve been watching the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Prior posts are herehere, here, and here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

Rowan Scarborough of The Washington Times reports here on that fact-finding hearing:

A retired Navy admiral who accused the service’s top lawyers of improperly intervening in a SEAL’s sexual assault case made his charge to a judge this week at a special hearing ordered by the military’s highest court.

Retired Rear Adm. Patrick J. Lorge testified in a Washington Navy Yard courtroom that a lawyer admiral — Vice Adm. James Crawford, now the judge advocate general of the Navy — urged him not to overturn the conviction of Senior Chief Petty Officer Keith E. Barry.

. . .

Mr. Lorge testified that Adm. Crawford told him that overriding the military judge’s guilty verdict would harm the Navy politically. On the stand, Adm. Crawford acknowledged he spoke with Mr. Lorge but denied he did anything improper.

 

In a series of posts (here, here, and here) in May and June we discussed the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

That fact-finding is underway. According to this report published by the San Diego Union-Tribune, Vice Admiral Crawford (the current JAG) gave a deposition this week and, according to Barry’s civilian defense counsel, “Crawford has confirmed that he discussed the case with Lorge. Crawford also disclosed the existence of documents and messages exchanged at the highest levels of the Navy about Barry.”

But the report also raises a new allegation: that Vice Adm. Crawford pushed for a prosecution in a different case involving the 2016 drowning death of a special operations candidate, Seaman James Derek Lovelace. Barry was also a member of the special operations community, but was not (best I can tell) involved in any way in the death of Lovelace.

The Union-Tribute reports that:

Word that the Union-Tribune had received records in both the Barry and Lovelace cases triggered numerous, sometimes frantic, calls from top Navy officials nationwide on Monday and Tuesday, with flag officers or their representatives inquiring into Crawford’s involvement in both matters.

It’s certainly not unusual for a JAG or other senior military attorneys to get involved in serious cases, to form opinions about whether prosecution is warranted, and to take action consistent with their opinions. Article 34, in fact, requires them to do precisely that. The emerging claim from the Barry and Lovelace cases, however, seems to be that Vice Adm. Crawford has – and acts on – a pro-prosecution bias.

Paradoxically, at the end of the Union-Tribune article that claim is offered as a justification to give lawyers more power in the military justice system:

Eugene R. Fidell, the military law instructor at Yale Law School, said both cases possibly linked to Crawford were very unusual but pointed out the need for broader reforms to the way the armed forces dispense justice.

“These cases illustrate that Congress needs to get serious about the military justice system and turn it from an 18th century system into one fit for the 21st century,” said Fidell. “Military decisions on who gets prosecuted, and for what, are based on a system that was used by King George III. Until that changes, you’ll continue to see controversies like these.”

Fidell has long advocated for lawmakers to strip commanders of the power to decide who is prosecuted, to pick jurors and to vacate verdicts and sentences, vesting charging authority instead with senior attorneys independent of the chain of command and jury selection with an outside and impartial commissioner.

In this post I noted a May 12, 2017, news report about the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Mike posted a follow-up here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, and the NMCCA affirmed in an opinion available here. CAAF summarily affirmed on April 27, 2017.

After CAAF acted, the Admiral signed an affidavit alleging that he wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Lorge’s career.

Yesterday – in an order available here – CAAF vacated its decision and ordered a factfinding hearing:

That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue:

WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY.

In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied.

The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).

One noteworthy part of CAAF’s order is that it does not permit disapproval of the conviction now if the DuBay were deemed impracticable. Absent such authorization, the conviction will stand unless CAAF finds a reason to reverse it. And the Admiral will testify if called (or face potentially-severe consequences), as he is still subject to the UCMJ.

Here is Navy Times coverage of the affidavit submitted by retired Rear Admiral  Patrick J. Lorg in the sexual assault case of Senior Chief Special Warfare Operator (SEAL) Keith Barry.  Here is Zach’s prior coverage from the Washington Times.  Here is a link to the NMCCA opinion in the case.

In a story available here Rowan Scarborough reports for the Washington Times that:

Retired Rear Adm. Patrick J. Lorge charges in a May 5 signed affidavit that the then-judge advocate general of the Navy and her deputy tried to persuade him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Mr. Lorge’s career.

. . .

Mr. Lorge said he came to believe that there was insufficient evidence to convict and wanted to overturn the verdict. His staff judge advocate advisers tried to talk him out of it. Failing, they then brought in the Navy’s powerhouse admirals to talk him out of it.

Vice Adm. Nanette DeRenzi, then judge advocate general of the Navy, talked to him in his office.

. . .

He then spoke by telephone with Vice Adm. James Crawford III, then Adm. DeRenzi’s deputy and the current judge advocate general of the Navy.

. . .

“Upon my review of the record of trial from this case, I did not find that the government proved the allegation against Senior Chief Barry beyond a reasonable doubt,” Mr. Lorge wrote. “Absent the pressures described above, I would have disapproved the findings in this case.”

The case is that of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Admiral Lorge approved the findings and sentence, and the NMCCA affirmed in an opinion available here. The CCA’s opinion included this detail:

In relevant part, the convening authority stated:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause[.] The evidence presented at trial and the clemency submitted . . . 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 apparent 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 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.

United States v. Barry, No. 201500064, slip op. at 6-7 n.14 (N.M. Ct. Crim. App. October 31, 2016) (marks in original) (link to slip op.).