CAAF to take a closer look at the possible (and possibility of) unlawful command influence in the Barry case
Senior Chief Barry, U.S. Navy, 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, 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 complete, but CAAF’s action isn’t. Yesterday the court issued the following grant order:
No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Upon reconsideration of Appellant’s petition for grant of review, we granted review of the following issue: WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY. We also ordered a hearing in accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). SeeUnited States v. Barry, 76 M.J. 407 (C.A.A.F. 2017)(sum. disp.). The record of that proceeding and the findings and of fact and conclusions of law of the DuBay judge have been returned to this Court. After consideration of the record of the hearing and the findings and conclusions of the DuBay judge, it is ordered that said petition is hereby granted on the following specified issue:
WHETHER A DEPUTY JUDGE ADVOCATE GENERAL CAN COMMIT UNLAWFUL COMMAND INFLUENCE UNDER ARTICLE 37, UCMJ, 10 U.S.C. §837 (2012).
The original granted issue is also modified as follows:
WHETHER MILITARY OFFICIALS EXERTED ACTUAL UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY OR CREATED THE APPEARANCE OF DOING SO.
Appellant shall file a brief on the two granted issues on or before December 29, 2017, Appellee shall file a brief within 30 days of the date of the filing of Appellant’s brief, and Appellant may file a reply within 10 days of the date of the filing of Appellee’s brief. The parties are ordered to file a joint appendix in accordance with C.A.A.F. R. 24(f).*
* Judge Sparks is recused and did not participate.
All of our prior coverage of this case is available here.