Capt. Rex Guinn was fired in February 2011 for failing to ensure that the trial attorneys he supervised "fully complied" with the requirements of the Navy Victim Witness Assistance Program. (Navy)
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The senior Navy attorney and commanding officer fired over his legal service office's handling of a controversial sex assault case in Japan two years ago did not violate any rules of professional conduct regarding competence, diligence or supervisory responsibility, a Navy legal review has concluded.
But the Rules Counsel review agreed with the admiral who fired Capt. Rex Guinn in February 2011 that Guinn "exercised poor leadership and management" because he failed to ensure that the trial attorneys he supervised "fully complied" with the requirements of the Navy Victim Witness Assistance Program, or VWAP.
Those requirements included passing out forms containing court-martial information for victims and keeping victims informed about a pending plea deal for the officer accused of the assaults.
Still, Guinn's civilian attorney argues, the review's conclusions on Guinn's professional conduct, written by a Navy Reserve captain in the Judge Advocate General's Corps, amount to a refutation of Rear Adm. Nanette DeRenzi's rationale for firing Guinn and indicate that DeRenzi, head of Navy Legal Service Command and deputy judge advocate general, rushed to judgment.
"The investigation that was done this time was much more detailed," said Charles Gittins, a veteran defender of military clients, who said it took six months to get the Navy to release a copy of the review, which he shared with Navy Times.
The issues that led to Guinn's firing stem from the case of a Navy family physician, then-Lt. Cmdr. Anthony Velasquez, charged with molesting 25 female patients during routine exams in Japan and Kuwait between March 2006 and June 2008. He pleaded guilty in May 2010 to two counts of wrongful sexual contact and two of conduct unbecoming an officer, and was required to register as a sex offender in Kentucky, where he now lives.
The deal, approved by the then-top U.S. admiral in Japan, allowed Velasquez to avoid a maximum sentence of 24 months in prison, forfeiture of all pay and allowances, a $28,000 fine and dismissal from the Navy.
When the Stars and Stripes newspaper reported the angry reaction of some of the victims, it led to allegations that certain procedures in the VWAP, begun in 1996, were not followed. The program calls for victims to be kept informed throughout the judicial process if they so elect. This includes the right, according to the Navy, to be notified of court proceedings and to "information about the conviction, sentencing, imprisonment and release of the offender from custody."
The controversy prompted a Navy Installations Command inspection of Region Legal Service Office Japan's victim assistance program.
Keeping the victims informed had fallen to the lead trial counsel in the case, Lt. Emily Dewey. DeRenzi said Dewey "was diligent in maintaining contact with the victims and informing them of case developments" and that this satisfied "many" VWAP requirements — but "not those related to plea negotiations."
Specifically, Dewey had not provided victims a required form that conveys basic information about the court-martial process, and had not "explicitly" discussed the prospect of a pretrial agreement with victims, as she'd told Guinn she would do a week before the agreement was signed, said Capt. Richard Giroux, who led the command investigation on which DeRenzi based her decision to fire Guinn.
Gittins maintains that Dewey lied to Guinn and that DeRenzi should have taken this into account in deciding to fire him.
"Absolutely," Gittins said. "He was repeatedly told by the trial counsel that the trial counsel had the views of the victims. And the trial counsel wasn't telling the truth. As a naval officer, you can't assume that the naval officers that are working for you are lying to you. I mean, you'd have to do everything yourself."
A Navy investigator said that Dewey had an obligation to collect victims' views on a plea agreement but cited "mitigating circumstances," including her relatively limited three years' experience, the scope of the court-martial and her regular communications with victims. Capt. Michael Quinn also concluded that Dewey had also provided misleading statements to investigators regarding training on the VWAP duties of trial counsel. But, he wrote in his Rules Counsel review of Dewey's conduct, "I do not find the requisite evidence of intentional deception on your part" with regard to any statements she'd made.
Fleetwide program failure?
The failure to provide victim-witness forms wasn't limited to RLSO Japan. Quinn noted that compliance was deficient at all RLSOs — a point Gittins pounced on.
"The VWAP program was jacked up throughout the Navy," Gittins said. "I mean, it just simply was not being run in accordance with the regulations. And if that's the reason you relieve the commanding officer of a RLSO, then they all needed to be fired."
The Navy would not comment on the Guinn review's findings. Spokeswoman Jennifer Zeldis said the Office of the Judge Advocate General does not publicly confirm or comment on legal reviews conducted by the Rules Counsel. However, Zeldis indicated DeRenzi took a broad-based view of Guinn's performance.
"The [Judge Advocate General Manual] investigation convened by Commander Naval Legal Service Command evaluated Capt. Guinn's actions as commanding officer of RLSO Japan," Zeldis said. "The investigation revealed certain failures in the command's handling of a sexual assault court-martial."
Guinn could ask the Board for Correction of Naval Records to consider the situation and clear his record while on active duty, but he won't be doing that.
"He's put in a request for retirement," Gittins said. "He's got other fish he can fry."