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Monday, April 09, 2018

Civilian Court-Martial Defense Lawyer: Dear American Politicians, Overzealous Victim Advocates, Military Authorities, and Press – You Certainly Have Screwed Up This System…Perhaps that was the Intent?

Military Defense Lawyer (Former JAG Attorney) News:

As we continue to digest the implications of United States v. Vargas for the military justice system, particularly in alleged rape and sexual assault cases (UCMJ Article 120), I have been passively following the case of United States v. Barry.  It’s just another in the growing line of cases that end with my head in my hands.   

Here is the CAAFlog page for that case:

For anyone who clings to the belief that the post-2012 changes to the military justice system and pressure brought by misguided, ill-intentioned, ill-informed, or ignorant members of our Government, Overzealous Victim Advocates, Military Authorities, and the Press have been good for a system of “JUSTICE,” you should familiarize yourself with the Barry case.  In this case, doing what was best politically for the Navy was chosen instead of doing what was right for the military justice system and for the accused sailor.  Then, the mess went up on appeal…    

Here are some points raised by the defense in an appellate brief, available here:

[*RADM Lorge was the GCMCA in this case.]

• The DuBay judge found that “RADM Lorge believed [at the time of his final action], and continues to believe, the appellant’s guilt was not proven beyond a reasonable doubt at his court-martial.”

• RADM Lorge made the following statement in a sworn declaration: “I believed then, and I believe now, that I should have disapproved the findings[.]”

• In response to a question about his meeting with VADM Crawford on April 30, 2015, RADM Lorge testified as follows: “The real question I had . . . was, you know, disapproving a sexual assault case, you know, is that going to bring big scrutiny upon the Navy. And he told me yeah.”

• A “week or two” after the meeting, RADM Lorge’s Staff Judge Advocate (SJA) suggested putting novel language in his final action to communicate RADM Lorge’s concerns about SOCS Barry’s case.  As RADM Lorge recalled, the purpose of this language was to trigger action from an appellate court. “[T]he appellate court is going to realize that [convening authority’s] don’t do that, and they need to take a look at this, and they should probably overturn it . . . They can make political decisions; you really can’t.”

• The DuBay judge found that at some point after the SJA’s “advice, and prior to taking action, RADM Lorge then had a telephone call with VADM Crawford to discuss the proposed plan for action, i.e., putting language in the action that would communicate RADM Lorge’s reservations about the case.”  RADM Lorge “c[a]me away from the telephone call believing his proposed plan was the best he could do in the appellant’s case.”

• The sole purpose of the phone call was to discuss SOCS Barry’s case.

• RADM Lorge testified the he recalled asking during the phone call whether “some extra stuff in my [convening authority’s] action would do something[.]”21 And VADM Crawford’s advice was to “trusting [sic] this and this will--this will work out for Senior Barry.”

• In response to the following question from the government: “Did Admiral Crawford advise you on your legal options in this case?” RADM Lorge responded: “I believe so.”

• In response to the following question from the government: “Did Admiral Crawford try to convince you to approve the findings in this case?” RADM Lorge responded: “I think he did with how he spoke with me on the phone.”

• “RADM Lorge does believe that pressure was placed on him by senior military leaders.”

• RADM Lorge expressed to his Public Affairs Officer that he believed “the Navy” “wanted to get tough on sexual assaults, justice be damned[.]”

• “RADM Lorge did not take the action he wanted to take in this case[.]”

• “[B]ased on comments by VADM DeRenzi (unrelated to the case at hand), comments by VADM Crawford (related to the case at hand), and confusing and difficult advice from his SJA at the time, RADM Lorge felt compelled to take the action taken in appellant’s case.”

• “RADM Lorge was influenced by conversations with senior military leaders; specifically VADM DeRenzi and VADM Crawford when taking action in this case.”

• “Actual or apparent unlawful command influence tainted the final action in this case.”

• “[T]he 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.”

How do we just keep going with a system so susceptible to those who want to ensure the system is unfair?  We have to keep fighting these systemic changes and these cases until something gives.  Something has to give... 

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.

Blog postscript: I (attorney Richard V. Stevens) am a former active duty military lawyer (JAG). My perspectives and advice, therefore, are based upon my experience as military defense lawyer and as a civilian criminal defense lawyer practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens for a free consultation. These military defense law offices are located in the Northern Florida/Georgia areas, but the military defense representation is worldwide – when necessary, the attorneys travel to wherever the client is stationed around the world.

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