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.

26 Responses to “Retired Admiral will get to testify about the conviction he wishes he disapproved when he had the chance”

  1. Weirick says:

    The JAGs should be testifying. They are subject to the Code. 

  2. Lone Bear says:

    This is huge! The JAG will have to testify too, along with the SJA to the CA.  CAAF granted a motion to reconsider, I’m not sure why they would permit disapproval, that would be premature.  The DuBay is clearly practicable.  In light of Boyce, how will this not result in a set aside if substantiated? 

  3. Tami a/k/a Princess Leia says:

    Huger than POTUS’ hands!  I would say TJAG and former TJAG must also testify.  I wonder who the MJ will be?

  4. Cliff Clavin says:

    Sounds like CAAF wants to prevent TJAG from avoiding the issue altogether by disapproving w/o having a hearing.  Should be interesting.

  5. Scott says:

    Lone Bear,
     
    I think there’s a distinction between this situation and Boyce, in that this case deals with post-conviction clemency and Boyce dealt with referral.  It seems like a new clemency decision would be a more likely remedy than setting aside the conviction.

  6. Lone Bear says:

    Scott-
    The CA in this case said he would have disapproved except for the UCI.  It seems like a new CA’s action would be superficial.  The way I understand the case, but for the actions of the SECNAVs attorney’s the CA would have set aside the conviction.  That being said, I could see the court ordering a new CA’s action and calling it a day.  I don’t think that would be just, but it would give the superficial appearance of a fair review. 

  7. Alfonso Decimo says:

    If only we were in Las Vegas! I would wager the current and former Navy JAGs (we don’t say “TJAG”) never testify. 

  8. DCGoneGalt says:

    At time like this I think “WWAFAGD”?
     
    What would Air Force Appellate Government Do?

  9. Isaac Kennen says:

    If the Court has ordered a rehearing but the convening authority to whom the record is transmitted finds a rehearing impracticable, the convening authority may dismiss the charges.
     

    RCM 1204(c). I don’t necessarily read CAAF’s order as having expressly invalidated that RCM. Is it possible that the CA could still dismiss all charges rather than convening the Dubai hearing if the CA found such a hearing to be “impracticable”?

  10. Alfonso Decimo says:

    Isaac, it was probably an auto-correct, but you mean a Dubay hearing, United States v. DuBay, 37 CMR 411, 413 (CMA 1967). If I were the trial judge or counsel, I would prefer a Dubai hearing, however. That sounds like more fun.
     

  11. Señor TC says:

    Is it UCI for the DJAG to tell a Commander the honest reality of the apparent UCI of Congress?  (after all, Congress would have certainly flamed out over it)Anyone know where to get a copy of the affidavit?  I’m curious about what exactly he’s alleging Crawford/DeRenzi said to influence him.

  12. k fischer says:

    AD,
     
    I’m sure that 6 SVP’s would be required for the Dubai hearing…..
     
    I’m with Lone Bear.  Seems that if UCI caused a CA who was going to dismiss charges at clemency to become a Type III accuser, and instead approved the findings and sentence at action, then the prejudice caused Barry would not be cured by a new trial.  There should be a dismissal with prejudice.  It is a drastic measure,  but when you have the top two Navy Lawyers clearly making statements that are highly inappropriate like “you are going to paint a target on my back” and “dismissing the charges will ruin your career,” then drastic measures are called for, particularly in today’s highly political environment in military sexual assault prosecutions.
     
    To me, this is far worse than that Marine case where the Government challenged a military judge and brought in the fact that she dated the CDC, or facts to those effect, to have her recuse herself.  Didn’t CAAF dismiss those charges with prejudice?

  13. k fischer says:

    Senor TC,
     

    According to Dowling’s affidavit filed on Thursday with the Washington, D.C.-based U.S. Court of Appeals for the Armed Forces, Lorge said Crawford “told me don’t put a target on my back. He said I have smart lawyers, let them figure it out.”
    In his own affidavit filed on May 5, Lorge claimed that Crawford urged him to not “put a target on my back.” He also wrote that without Crawford’s pressure, he wouldn’t have allowed Barry’s sexual-assault conviction to stand.
    According to another military attorney advising Lorge, Lt.Cmdr. Leah O’Brien, he told her that Crawford had warned him: “If you disapprove the findings in this case, it will ruin your career,” according to her affidavit.
     
    http://www.sandiegouniontribune.com/military/sd-me-seal-case-20170616-story.html
     

    So, Lorge and Dowling’s affidavit confirms the “target on back quote” and Lt.Cmdr. Leah O’Brien who was also advising Lorge wrote an affidavit where she stated she witnessed Crawford told him that disapproving findings would ruin his career.  This sounds really bad.

  14. Charlie Gittins says:

    “This sounds really bad.”   Yes, it does.  Popcorn, anyone?  This will be fun to watch.  How I wish I was doing the cross-examination.  

  15. John O'Connor says:

    “Colonel Pohl, please pick up the white courtesy phone.”

  16. DCGoneGalt says:

    I hope all witnesses are made as miserable as possible.
     
    The word of the day:  schadenfreude.  

  17. Matt says:

    “Lorge said Crawford “told me don’t put a target on my back. He said I have smart lawyers, let them figure it out.””
    It kind of undermines the military leadership’s insistence that we need to have the CA’s in charge of military justice, when the TJAG is telling the CA to ignore his own reservations and just let the smart lawyers figure it out.

  18. Concerned Defender says:

    Having seen PLENTY of corrupt and inept SJAs (and wondered HTF did they get their job or rank being so corrupt and/or inept and/or cowardly), I will be watching this with vigor and enthusiasm. 
    I’m working on a case now where TWO SJAs outright lied to HRC and one of them also lied to Senator McCain.  
    I know you SJAs are out there, reading CAAF and paying attention.  So, wake TFU and do your job with some integrity please.  Stop the lying.  Stop the garbage preferrals and referrals.  Train your subordinates to do the RIGHT thing, not the expedient thing.  How much do you value your law license and career or liberty?

  19. Cheap Seats says:

    While I will be eating my popcorn watching the JAGs squirm in their testimony, I am not sure the defense gets off that easily either.  What is RADM Lorge going to say when asked when he submitted his retirement (I assume months before this CA Action)?  Had his retirement orders already come in with retirement rank? How is that going to effect his career?  When did he first express reservations about his decision.  Whom did he tell?  When?  When did he first talk to the defense? 
    Is it wrong for the JAGs to tell someone the pros and cons of their decision matrix?  That’s what SJAs do all the time.  We tell commanders the legal options, we often lay out some non-legal implications (as do many of their other non-legal advisors), and then they make decisions.  So at the end of the day, I won’t hang my hat on the press account that is coming from the Defense.  I am glad they are pushing the issue, though, as it is an important one and could be as bad as they claim.  But it could also be there was an admonition to do what the CA believes is right, knowing there would be scrutiny, so don’t make any decision lightly.  Remember the disapproved AF case only to find out about all the “he’s not as good as he made you think he was” evidence that came out about a certain LTC after disapproving?
    I guess I’m still struggling why information that could have come to the defense’s attention with reasonable diligence was not presented to NMCCA nor CAAF until after CAAF first affirmed.  Does that forfeit the issue for this appellant?  Does CAAF send the whole matter back to NMCCA because they were not able to consider it on direct appeal?  (Probably not based on the JAG taint.)  The Defense knew that RADM Lorge had reservations just by reading the CA Action.  Why did they not get that information before NMCCA heard the case?  Or CAAF?  I’m not sure that CAAF should allow them to present the matter.  It reads to me that RADM Lorge had enough pause to write a warning CA Action but then was upset someone else didn’t kick the case.

  20. Alfonso Decimo says:

    My thoughts go to the Navy JAG HQ attorneys advising the JAG and the DJAG. Someone should have dissuaded them from meeting with the CA. In the military, there is pressure on lawyers to be like the other staff officers, but lawyers have the uncomfortable duty to advise their clients what they don’t want to hear. That’s true even when one’s client is the Judge Advocate General and when it may be detrimental to one’s career. “Stay in your lane!” should have been the advice. I don’t like agreeing with Concerned Defender (and I don’t completely), but it seems likely there were a few lawyers being cowardly and expedient at a crucial moment.

  21. Py says:

    My case is pending review at NMCCA. I have a possible chance of getting a good resource pursuant to United States v Hills. Can any body advice me how the process will be if my case is set aside by the NMCCA? I will appreciate the timelines of event too.

  22. Bill Cassara says:

    Py: None of us can answer that question. You need to speak to your counsel.

  23. Señor TC says:

    k fischer,
    While the quote is problematic (and does sound like Crawford), I don’t see how it qualifies as direct UCI.  It may be non-legal advice (and/or depending on the question, “outside his lane”), but Crawford didn’t have any authority over Lorge, and didn’t even outrank him (and hadn’t they worked together in the past?).  What it does seem like is evidence of DJAG being a vehicle for the apparent UCI of Congress, because he’s communicating the very likely and real consequences if Lorge decides to dismiss the case.Although to be frank, I think Lorge should have demonstrated some testicular fortitude and acted, and Convening Authorities would have had clemency yanked from them in GCM cases.  Asking a non-lawyer to review the case and make a new call on Guilt BaRD, based on evidence which was never offered on the merits, is just a recipe for a mess.  Especially when there’s already the special factual sufficiency review by the CCA.

  24. stewie says:

    Senor TC, I was not tracking that UCI required the offending party to outrank per se the person they are wrongfully influencing.
    SGMs can commit UCI.

  25. k fischer says:

    Senor TC/Stewie,
     
    I think a better position is that Judge Advocates can act under the mantle of command authority.  So, when you have the TJAG and Deputy TJAG telling you that it’s going to be bad for your career, whose command authority are they acting under?

     

    Each of the unlawful-command-influence cases has involved some mantle of command authority in the alleged unlawful activity. The actors have been convening authorities, commanders, and staff judge advocates.
    U.S. v. Stombaugh, 40 M.J. 208, 211 (C.M.A. 1994)

     
    We agree with appellant that the SJA’s briefing to the crew on the pending courts-martial had the potential for unlawfully influencing
    the outcome of the trials.
     

     

    A staff judge advocate generally acts with the mantle of command authority.
    U.S. v. Kitts, 23 M.J. 105, 108 (C.M.A. 1986)

     
    So, a the TJAG and Deputy TJAG do not have to have direct authority over Lorge because they act under the authority of their Commander.

  26. Vulture says:

    The catch phrase is “subject to the Code” isn’t it?