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.