CAAF Determines that Navy DJAG Improperly Influenced a Rear Admiral in Navy Seal Sexual Assault Case
In early 2014, Senior Chief Barry was charged with two specifications of sexual assault. He eventually went to trial and was convicted of one specification by a military judge. The finding and sentence came up to RADM Lorge, the Commander of Naval Region Southwest-San Diego for action. Although the Rules for Court-Martial governing the case allowed him to disapprove the guilty finding, and the Rear Admiral expressed his concern that Senior Chief Barry was not actually guilty, the Rear Admiral ultimately approved the finding and sentence, laying out his concerns about the finding in his Convening Authority’s Action.
After the Navy-Marine Corps Court of Criminal Appeals and the Court of Appeals for the Armed Forces (CAAF) both affirmed the finding and sentence, Senior Chief Barry’s lawyers requested that CAAF reconsider his case based upon a new declaration from RADM Lorge that he had not wanted to approve the finding, but had done so because of pressure he perceived from senior military and civilian officials. CAAF ordered a fact-finding hearing into the matter and learned that RADM Lorge had received a visit from VADM DeRenzi, The Judge Advocate General of the Navy, in February 2014, before charges were brought in Senior Chief Barry’s case. During the visit, VADM DeRenzi discussed the political pressure that military commanders faced concerning their handling of sexual assault cases and that she spent a great deal of time testifying on the topic or visiting Congress and the White House. She did not make these comments in the context of any particular case, including Senior Chief Barry’s.
In April 2015, while RADM Lorge was considering his action on Senior Chief Barry’s case, he received a visit from the Deputy Judge Advocate General of the Navy, RADM Crawford. RADM Lorge discussed Senior Chief Barry’s case with RADM Crawford and told him of his concerns about approving the finding. RADM Crawford advised RADM Lorge not to put a “target on his back” by disapproving a guilty finding in a sexual assault case and to listen to his lawyers, who were advising him to approve the finding and sentence. Once RADM Lorge decided to approve the finding and sentence and to include his misgivings in the action, he spoke to RADM Crawford about this proposed course of action. He came away from the call believing that this was the best he could do for Senior Chief Barry in the case. After these conversations with RADM Crawford, RADM Lorge approved the guilty finding and sentence in Senior Chief Barry’s case despite feeling that Senior Chief Barry had not been proven guilty beyond a reasonable doubt at trial.
Article 37(a) of the UCMJ states that no person subject to the UCMJ may attempt to coerce or unlawfully influence the results of a court-martial or the action of a convening authority. CAAF determined that RADM Crawford, although unintentionally, improperly influenced RADM Lorge’s actions when he left him believing that disapproving the guilty finding would create problems for the Navy and encouraged him to take his lawyers’ advice and approve the results of the court-martial even though he did not believe Senior Chief Barry had been proven guilty. As a result of the unlawful influence, CAAF set aside the results of Senior Chief Barry’s court-martial and dismissed the charge and specification with prejudice.
Unlawful command influence has been called the “mortal enemy of military justice”. It is one of many issues that apply specifically to military court-martial. If you or your loved one is facing a court-martial or want to appeal a court-martial, you need someone with experience who knows the Rules and the system. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.