Defense attorneys for a decorated Navy SEAL have filed new evidence to bolster their allegation that the sea service’s top lawyers at the Pentagon illegally intervened to make sure the sailor’s sexual assault conviction stuck.
The evidence, in the form of a sworn affidavit, comes in the case of Senior Chief Petty Officer Keith E. Barry. His accuser described encounters over two months of “crazy sex” that ended in an assault. Chief Barry contends the woman consented.
A military judge in San Diego convicted the chief in 2014, with a sentence of a dishonorable discharge and three years in prison.
It turns out that the officer overseeing the case, now-retired Rear Adm. Patrick J. Lorge, held deep reservations and was planning to overrule the conviction in 2015. Alarmed amid Congress’ interest in military sexual assault cases, his legal advisers notified the Navy high command.
What happened next is now the basis for Chief Barry’s two attorneys — a civilian and a Navy judge advocate — to accuse two admirals of unlawful command influence. They have asked the U.S. Court of Appeals for the Armed Forces, the military’s highest, to order an independent investigation.
First, the Navy’s top lawyer (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 later 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 say 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 David Sheldon, one of Chief Barry’s attorneys, this is independent proof that Adm. Crawford meddled in a criminal case, an action outlawed by the Uniform Code of Military Justice.
“This affidavit removes any doubt that the very top leaders in the Navy JAGC [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 lawyers have filed rebuttal briefs. They 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-lawyers 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.
Chief Barry, a combat veteran of Iraq, has prison time remaining to serve but is free pending the appeal.
• Rowan Scarborough can be reached at rscarborough@washingtontimes.com.
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