On September 5th, 2018, the United States Court of Appeals for the Armed Forces (CAAF) ultimately agreed to reverse the original sexual assault conviction in the Navy case of United States v. Barry. However, the process to undo that conviction and reach a new conclusion is largely contested, with the CAAF split as to how to decide and proceed. The voting majority has determined the conviction should be “dismissed with prejudice” but the remaining others, or dissenters, think it would be more appropriate to both reverse the conviction and supplement in new language in the order to challenge the guilty verdict altogether. In the first circumstance, Senior Chief Special Warfare Barry would still be under the specter of guilt, as a dismissal does not take any added steps to clear the defendant’s — or in this case, appellant’s — name. The conflicting views arise from opinions regarding just how the outcome U.S. v. Barry was unduly influenced and to what extent.
KEY DETAILS OF U.S. V. BARRY
After being accused of violating Article 120(b), defendant Barry was tried for and convicted of sexual assault. The sentencing was approved by Rear Admiral Patrick Lorge to include multiyear confinement and a dishonorable discharge from service. Admiral Lorge was the convening authority for this case and had the power to approve and or disapprove the findings of the Court Martial. At the time, Lorge had been told by a Staff Judge Advocate that it would not be possible to adjust the case result, either by sentence reduction or charge reversal. This advisement was untrue, as the Navy-Marine Corps Court of Criminal Appeals (NMCCA) would later determine. Following the NMCCA’s determination, it remanded the case and sent it back to Lorge for action.
With additional review, Lorge found a reversal would have been appropriate, if only he had known it was a possible option. Deputy Judge Advocate General (DJAG) Crawford was contacted, or extended a contact to Lorge, and reportedly convinced him to maintain the case’s conclusion, despite his thoughts about a possible reversal. Unusually, Lorge wrote a wordy addendum after his renewed conclusion that expressed his own serious concern over whether or not the case and judgements were handled fairly.
MATTERS COMPLICATE FURTHER IN APPEALS
The NMCCA initially stood as a strong opposition to Barry’s case. It agreed with the findings, maintained the sentencing penalties, and also concluded that none of the four “assignments of error” were valid.
After the CAAF summarily affirmed, Lorge intervened by giving an affidavit to Barry and his defense team. Within the affidavit, he stated clearly that he felt there was insufficient evidence of guilt to reach a conviction “beyond a reasonable doubt.” Lorge also admitted that he felt he had to approve the sentencing and conviction because of a prevalent sociopolitical climate that demanded the harsh punishment of suspected sexual assault offenders. Indeed, throughout the United States Armed Forces, recent moves have been put in place to make it easier to penalize service members accused of sexual assault, such as the Air Force Academy removing “collateral penalties” for victims who report an assault that was concurrent with other crimes. The resulting trend has been an overly-aggressive military justice system that seems to displace the rights of the accused in order to sate public expectations, which is exactly what Lorge alluded to in his affidavit.
QUESTIONING WHO CAN UNLAWFULLY INFLUENCE A CASE OUTCOME
Given the uncommon circumstances in which a general court-martial admits a failure of judgement, the CAAF permitted a further review of the case. In particular, a focus was placed upon whether or not the ruling and sentencing of U.S. v. Barry were actually completed under undue influences. That is to ask, were the original Staff Judge Advocate and DJAG Crawford actually in a position to change Lorge’s judgement in a way that violated or undermined the purpose of the military criminal justice system? Is sociopolitical pressure actually enough to be considered undue influence?
In review, it was found that a DJAG could indeed commit unlawful influence, which is a Uniform Code of Military Justice Article 37(a) violation. Within that particular article of the UCMJ, it is stated that none who are “subject to [the] chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial […] in reaching the findings or sentence in any case […]” Given DJAG Crawford’s familiarity with Lorge and the case itself, any conversations the two carried out reasonably influenced the case outcome, according to the provided majority explanation.
The minority voters of the CAAF questioned if Crawford had exerted any unlawful influence, though. They cited Lorge’s own admission of sociopolitical climate pressure as the key and perhaps sole influencer to his decision. While such factors would still unduly sway the case outcome, they would clearly be unrelated to the misdoings of a Judge Advocate General or another service member of similar stature. They also posited that unlawful influence that actually violates Article 37(a) needs to be intentional, not the outcome of presumably innocuous side conversations. This final remark was challenged by the majority voters.
PARTIES AGREE TO DISAGREE
Despite the significant arguing between the majority voters of the CAAF and the dissenting parties, the truth remains that both sides determined a reversal of the conviction was necessary. The underlying factor in either case was the “erroneous judgement” issued by Lorge, who had either been influenced by a DJAG or the expectations of a society that prefers to lock up sexual assault offenders first and ask questions later.
With an in-depth review, the situation could be further complicated in that Lorge only approved the sentencing but did not necessarily approve the findings. Such an inspection can steer the conversation to a question of what is more important: Lorge’s actions or the reasoning behind his actions? As of now, this extended discussion does not apply expressly to U.S. v. Barry, as the appellant’s case has concluded with dismissal with prejudice, meaning the conviction has been reversed and the defendant-appellant cannot be brought to trial again for this alleged offense.
MILITARY CRIMINAL DEFENSE LAWYER WITH GLOBAL EXPERIENCE
As it stands now, the climate of military criminal proceedings and court-martial is clearly shifting out of favor of the defendant, especially when considering the prejudice those accused of sexual assault or other sex crimes immediately encounter. Lorge’s own admittance in the complicated U.S. v. Barry case shows at least as much. If you have been accused of a sex crime while serving in the United States Armed Forces, you need to be ready for anything, including an opposition that might be unduly eager to see you convicted.
You should call upon Attorney Joseph L. Jordan and his legal team for steadfast defense against powerful oppositions. For years, he has protected the rights of our country’s protectors, taking cases at bases all around the world and for men and women serving in all branches of the military. The sooner you can get his team on your side, the sooner you can start to build a capable defense. Call (866) 624-7503 or use an online contact form today to begin.