A military judge ruled Oct. 24 that the Navy Judge Advocate General illegally intervened in the sexual assault trial of a decorated Navy SEAL.
Air Force Col. Vance H. Spath ruled Oct. 24 that Vice Adm. James Crawford, the Navy’s top lawyer, exerted unlawful command influence in the case of Senior Chief Keith E. Barry in 2015.
The naval officer overseeing Barry’s judge-only court-martial had planned to overturn his 2014 conviction, having decided the SEAL was not guilty of sexual assault against a girlfriend with whom he had an intense sexual relationship.
But the now-retired Rear Adm. Patrick Lorge was persuaded not to act by Adm. Crawford, who was the Navy’s second-ranking lawyer at that time.
“Actual or apparent unlawful command influence tainted the final action in this case,” Col. Spath wrote in his opinion Oct. 24.
The Air Force judge also bemoaned the effect the intervention has brought to the military justice system.
“As the judge who conducted the … hearing, it appears the final action taken in this case is unfortunate as it does not engender confidence in the processing of this case or the military justice system as a whole,” said Col. Spath, the Air Force’s chief trial judge.
Mr. Lorge, who was the convening authority in the Barry case in San Diego, stayed silent for two years. But last summer he swore out an affidavit saying he was riven by guilt and should have stuck by his guns.
The Washington Times first reported on the extraordinary action by Mr. Lorge, a former combat pilot.
David Sheldon, Chief Barry’s civilian defense counsel, said: “This morning a Military Judge made extraordinary findings in a case that will shake the very foundations of the military and the Navy JAG Corps. The court found that the current Judge Advocate General of the Navy committed unlawful command influence when he advised and persuaded a Convening Authority to approve the findings of a court-martial against a US Navy SEAL for political reasons, despite the Convening Authority’s firm belief the SEAL was not guilty of the charge and had not received a fair trial.”
The military justice system has been under intense political pressure from Congress to convict those charged with sexual assault.
The next step is for the case to go back to the US Court of Appeals for the Armed Forces, which had ordered the inquiry by Col. Spath. The military’s highest court decreed that no Navy or Marine Corps judge be involved.
Col. Spath oversaw a two-day hearing last month at the Washington Navy Yard. His opinion depicts an anguished Adm. Lorge wanting to overturn the conviction but being pushed by his legal adviser to affirm it and being persuaded by Adm. Crawford.
Then-Adm. Lorge reviewed the trial record in April and June 2015.
“RAM Lorge developed significant concerns about the case,” Col. Spath wrote. “His particular concerns were related to his perception the trial judge was not objective, his belief that the appellant may not have committed the crime for which he stood convicted, and his belief that the appellant had not received a fair trial.
During Adm. Lorge’s deliberations, Adm. Crawford had two conversations with him, one by telephone the other in person.
Col. Spath wrote about the first conversation: “RADM Lorge’s ultimate impression was that VADM Crawford believed RADM Lorge should approve the findings and sentence in the case. While VADM Crawford may not have said these actual words, based on the conversations during the meeting, RADM Lorge was clearly left with that belief after the meeting. The meeting confirmed the pressures on the system at a minimum.”
“What seems evident is RADM Lorge believes pressure was brought to bear on him to take particular action in this case,” the colonel wrote.
The Navy Judge Advocate General at that time, Vice Adm. Nanette DeRenzi, also spoke to Adm. Lorge, but well before the Barry court-martial. She talked about the intense pressure the Navy was under from Congress in sexual assault cases.
Col. Spath explained her discussion: “She told RADM Lorge that every three or four months decisions were made regarding sexual assault cases that caused further scrutiny by Congress and other political and military leaders. She also told RADM Lorge that a good deal of her time was being taken up with testimony and visits to both Capitol Hill and the White House.”
President Obama had ordered the Pentagon to launch a comprehensive campaign to wipe out sexual harassment and assault.
“VADM DeRenzi was simply discussing the realities of the current environment in which she and commanders were operating at the time, particularly in relation to sexual assault,” Col. Spath wrote.
“RADM Lorge did not take the action he wanted to take in this case; RADM Lorge was influenced by conversations with senior military leaders; specifically VADM DeRenzi and VADM Crawford when taking action in this case,” the Air Force judge concluded.
Patty Babb, a spokeswoman for Adm. Crawford, issued a statement: “On October 24, 2017, the military judge presiding over the DuBay hearing in US v. Barry issued findings of fact in the case. Those findings will now be considered by the US Court of Appeals for the Armed Forces. As always, the Navy wishes to preserve the integrity of the court’s deliberation, and it will therefore refrain from commenting on matters related to the case at this time.”