The nation’s highest military court on Monday sided with a decorated Navy SEAL and ordered an investigation into whether top Navy admiral lawyers at the Pentagon illegally interfered in his case to ensure a conviction on a sexual assault charge.
The U.S. Court of Appeals for the Armed Forces granted a petition for an independent probe from defense attorneys for Senior Chief Petty Officer Keith E. Barry, who was convicted of sexual assault in 2014 and sentenced to a dishonorable discharge and three years in prison.
Last month, the former admiral who oversaw Barry’s case swore in an affidavit that two three-star admirals pressured him to uphold the conviction when he was about to overturn the trial judge’s ruling.
“In order to resolve this allegation of unlawful command influence, we conclude that further fact-finding must be conducted,” the military appeals court said Monday. “The petition for reconsideration is granted.”
What’s more, the court ruled that the fact-finding hearing will be presided by a “military judge from an armed force other than the United States Navy or the United States Marine Corps.” The presiding officer will return the fact-finding record directly to the court, not to the Navy chain of command, no later than Nov. 1.
“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,” the court said.
“A war hero has been wrongly convicted because of the Navy’s top lawyer’s unlawful actions,” said David Shelton, Barry’s civilian defense attorney. “The time is now for justice.”
The court denied the defense’s request for a special master to investigate. Barry’s accuser described encounters over two months of “crazy sex” that ended in an assault. Barry contends the woman consented.
His attorneys this month presented the sworn affidavit from a subordinate of now-retired Rear Adm. Patrick J. Lorge, who had held deep reservations and was planning to overturn Barry’s conviction in 2015. Alarmed about Congress’ interest in military sexual assault cases, his legal advisers notified the Navy high command.
What happened next formed the basis for Barry’s two attorneys — Mr. Shelton and a Navy judge advocate — to accuse two admirals of unlawful command influence.
First, the Navy’s top attorney (or judge advocate general), then-Vice Adm. Nanette M. DeRenzi, communicated with Mr. Lorge, who was serving as convening authority.
“She conveyed the importance that the convening authorities held and how tenuous the ability of an operational commander to act as a covering authority had become, especially in findings or sentences in sexual assault cases due to the intense pressure on the military at the time,” Mr. Lorge recalled in a May 5 sworn affidavit. “She mentioned that every three or four months military commanders were making court-martial decisions that got questioned by Congress and other political and military leaders, including the president. This conversation reinforced my perception of the political pressures [they] faced at the time.”
Next, Vice Adm. James W. Crawford III, then-Adm. DeRenzi’s deputy and now her successor, told Mr. Lorge by telephone that overturning the conviction would kill Mr. Lorge’s career.
It is that phone call for which defense attorneys said they have new corroboration in a June 5 sworn statement from Lt. Cmdr. Jonathan Dowling. He was deputy staff judge advocate for Mr. Lorge when he commanded Navy Region Southwest and was considering the Barry case.
Cmdr. Dowling quoted then-Adm. Lorge as telling him, “Jim told me don’t put a target on my back. He said I have smart lawyers; let them figure it out.”
Cmdr. Dowling asked who “Jim” was, and Mr. Lorge replied, “Jim Crawford.”
To Barry’s attorneys, this was independent proof that Adm. Crawford meddled in a criminal case, which is outlawed by the Uniform Code of Military Justice.
“This affidavit removes any doubt that the very top leaders in the Navy [Judge Advocate General’s Corps] committed unlawful command influence,” Mr. Sheldon told The Washington Times. “It confirms that not only is there smoke, there is a conflagration burning out of control. It is, without question, time for the conviction of Senior Chief Barry to be overturned and for the Judge Advocate General of the Navy to resign.”
Navy public affairs has declined to comment on the case.
Navy attorneys filed rebuttal briefs and told the appeals court that, instead of appointing a special master, it should send the case to a new convening authority in San Diego and let that admiral determine whether illegal command influence happened.
Mr. Lorge’s extraordinary sworn statement accusing two admiral-attorneys of misconduct contained regret that he did not following his instincts in 2015: “On a personal note, I would ask you to forgive my failure in leadership and right the wrong that I committed in this case against Senior Chief Barry; ensure justice prevails and when doubt exists, allow a man to remain innocent.
“Upon my review of the record of trial from this case, I did not find that the government proved the allegation against Senior Chief Barry beyond a reasonable doubt. Absent the pressures described above, I would have disapproved the findings in this case,” he said.
Barry, a combat veteran of Iraq, has prison time remaining to serve but is free pending the appeal.
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