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Unlawful Command Influence - Barry Case Study

The Senior Chief Barry Case: A Case Study in Unlawful Command Influence

Anyone who follows military justice in the news will have been extremely disheartened over recent events involving the trial of a Navy SEAL for sexual assault and the actions of the Judge Advocate General of the Navy (TJAG). But for those of us who have worked in the military justice trenches for years, it’s not surprising. Powerful Senators like Kirsten Gillibrand have been putting more and more intense pressure on senior military leaders to punish service members accused of sexual offenses, and to punish senior commanders who don’t handle sexual assault cases to their liking.

The consequence is that if you are in the military, and you are even accused of a sexual offense in the current climate, whether or not there is any evidence to back up that allegation, your rights are in serious jeopardy. You will need a tough, independent, experienced defense attorney who is not afraid to stand up to powerful Senators like Gillibrand and to flag officers and other military officials who put their careers above your rights.

Learn more about UCI by contacting The Hanzel Law Firm at (843) 202-4714.

First things first: What is UCI and why is it such a bad thing?

Unlawful Command Influence, or UCI, has been called the scourge of military justice. It is a form of abuse of authority where rank is used to subvert a service member’s constitutional right to a fair trial at court-martial, so that senior leaders can get a result they want. UCI often is politically-motivated.

The framers of the Uniform Code of Military Justice (UCMJ) and the members of Congress who passed it in 1950 recognized the unique vulnerability of service members to UCI when they drafted the UCMJ. They had seen Soldiers’ rights violated in World War II, and they knew the danger of using rank insidiously to subvert the constitutional rights that brave service members swore to uphold and risked their lives to protect.

Recently, those rights have come increasingly under attack in the context of military sexual assault prosecutions. As anyone serving in the military knows, the politics of sex is a hot-button political issue in the military of today. In fact, nothing in military justice is more politically-charged, and nowhere are service members’ rights more in jeopardy than when accused of a sexual offense. Despite the fact that every one of us swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same” when we joined the military and again every time we promoted, it is remarkable how many senior officers – especially flag officers – essentially lose their minds now when the word “sex” is used in the context of an allegation.

I like to use the hypo of a purse snatching. If a female E-7 accused a male senior officer of snatching her purse right out in the open in front of three eyewitnesses, it would be fair for their commander to order an investigation. But if all the witnesses said it didn’t happen, the case would be closed. Anything beyond that would be an absurd waste of time, and it would not be pursued. If that same accuser accused that same senior officer, under the same circumstances, of instead touching her breast, he would be hauled in front of a board of inquiry (BOI) or a court-martial and forced to defend himself formally.

How did UCI result in a SEAL being dishonorably discharged?

SEAL Senior Chief (SOCS) Barry was surprisingly convicted of sexual assault despite facts that many who do this for a living thought would have resulted in his acquittal. When the Convening Authority, RADM Patrick Lorge, USN, read the transcript of the trial, he had doubts about Senior Chief Barry’s guilt. And at the time, he had the power to overturn the conviction. But when he expressed to his JAG that he felt overturning the conviction was the right thing to do, his JAG first erroneously told him he could not. Then, he actively campaigned against RADM Lorge’s consideration of setting aside the conviction. Eventually, he got the Navy’s Commander of Naval Legal Service Command, then No. 2 lawyer in the Navy RADM James Crawford III, involved. According to the Defense, in appellate arguments supported by an Air Force Military Judge’s finding at a recent DuBay hearing, now VADM Crawford, who is currently the Judge Advocate General of the Navy (i.e. its top lawyer), succeeded in talking RADM Lorge out of his decision, not based on the merits of the case but to avoid political fallout. (See Rowan Scarborough, “Military judge rules Navy Judge Advocate General illegally intervened in SEAL’s trial,” The Washington Times, Oct. 24, 2017, https://www.washingtontimes.com/news/2017/oct/24/military-judge-rules-navy-judge-advocate-general-i/) . It’s important to highlight just how inappropriate meddling by “The JAG” is: the senior JAG in every service has the responsibility of certifying appellate issues in felony criminal cases and is entrusted with ensuring that JAG’s comply with the service’s Professional Responsibility requirements. By campaigning for RADM Lorge to affirm Senior Chief Barry’s conviction, he became actively involved in the prosecution of the case.

But for VADM Crawford’s intervention, it is highly likely RADM Lorge would have overturned the conviction for Senior Chief Barry, and he would still be a Navy SEAL today. Instead, Senior Chief Barry was drummed out of the service with a dishonorable discharge, lost a multi-million-dollar retirement, and spent three years in a military brig rather than fighting for his country.

At a recent hearing ordered by the Court of Appeals for the Armed Forces (CAAF) in Washington DC, RADM Lorge and VADM Crawford, as well as a number of other Navy JAGs, testified in front of an Air Force Military Judge about what they observed and did in this case. The Judge found RADM Lorge and several other witnesses to be credible. He did not include VADM Crawford in that list. And he found VADM Crawford’s actions amounted to unlawful command influence (See also Carl Prine, “Court: Top Navy lawyer’s unlawful influence tainted SEAL’s San Diego rape case, The San Diego Union Tribune, Oct. 24, 2017, http://www.sandiegouniontribune.com/military/sd-me-unlawful-influence-20171024-story.html).

What this means is that a judge found the Navy JAG himself violated the law to prevent a sexual assault conviction from being overturned. That is because Article 37 of the Uniform Code of Military Justice (UCMJ) makes it unlawful to interfere with a court-martial in this way. And Article 98, UCMJ, a statute almost never utilized, actually provides a mechanism to criminally prosecute those who violate Article 37, UCMJ. The case now returns to the Court of Appeals for the Armed Forces (CAAF) in Washington DC, to decide what will happen to Senior Chief Barry.

What does this mean for you if you are in the military and accused of a sexual offense?

It means you don’t just have to worry about the facts of your case. You also have to worry about politics and whether any of the uniformed attorneys, commanders or jurors associated with your case will be improperly influenced by the intense pressure put on them by their superiors, including politicians like Sen. Gillibrand. Senators like Gillibrand have the power to stop Generals’ and Admirals’ careers cold simply by unilaterally pigeon-holing their promotions. She has actually done this. And flag officers know it. Flag and general officers faced with the loss of promotion if they do anything to help a junior Soldier or Sailor or Marine accused of a politically incorrect crime will almost always choose the path least risky to their own career.

What is remarkable is that Admiral Lorge had the courage to admit what was happening behind the scenes in this case, something no other flag officer has done before. But scuttlebutt among those who do this for a living is that UCI is happening in many more sexual assault cases and that convening authorities now have personal interests in making decisions against people accused of sexual offenses. Having met him myself, I believe RADM Lorge is an officer with great honor and courage, and his decision to publicly admit what occurred is worthy of John F. Kennedy’s “Profiles in Courage,” even if his initial decision was wrong.

If you are accused of sexual offenses – whether that be rape, sexual assault, sexual contact, or sexual harassment – you have to expect this kind of thing can happen to you. With the consequences of conviction dismissal or dishonorable discharge, loss of retirement, perhaps years stashed in a military brig, loss of rank and all pay and allowances, and worst of all, a lifetime sentence as a registered sex offender, you cannot take such an accusation lightly, even when you’re innocent. You have to find a defense attorney who will stand up for your rights.

My civilian military law practice is dedicated to fighting for the Constitutional rights of service members who volunteered to protect the Constitutional rights of all Americans. As a civilian attorney, I have the independence to do what needs to be done to ethically and zealously protect your rights. As a former JAG and Senior Defense Counsel, I also have the knowledge of the system you need to fight back and defend yourself.

If you are accused of a sexual offense, an independent perspective as part of your defense team is vital.

Questions? Contact us by calling (843) 202-4714.