In a landmark decision Wednesday, the military’s highest court ruled that the Navy’s top lawyer, Vice Adm. James W. Crawford III, illegally meddled in the case of a SEAL accused of rape.
The split 3-2 decision by the United States Court of Appeals for the Armed Forces tosses out the highly decorated commando’s 2014 court-martial conviction and bars the armed forces from ever trying him again.
The legal victory of Senior Chief Special Warfare Operator Keith E. Barry — who never quit proclaiming his innocence — will ripple across the entire military.
Writing for the majority, Chief Judge Scott W. Stucky, a retired Air Force colonel, determined that not only can the military’s most senior attorneys be held responsible for bogus advice that helps to unlawfully coerce a prosecution but that Crawford “actually did so in this case."
Called the “mortal enemy of military justice,” unlawful command influence, or UCI, occurs when superiors utter words or take actions that wrongfully influence the outcome of court-martial cases, jeopardize the appellate process or undermine the public’s confidence in the armed forces by appearing to tip the scales of justice.
Military judges traditionally have held commanding officers solely culpable for committing UCI, not the attorneys who advise them, but Stucky’s 15-page opinion reverses that.
Designed to buttress the public’s perception of the military criminal justice system, the majority’s decision also raises hard questions about “the political climate surrounding sexual assault” caused by the “increased scrutiny by Congress as well as other political and military leaders" on commanders who convene court-martial cases but also go through Capitol Hill, the Pentagon and the White House to get promoted.
“It’s justice," said retired Capt. Lawrence Brennan, a career Navy attorney and now an instructor at Fordham University’s School of Law. “It’s the right answer to a longstanding problem. It’s a well-written and well-reasoned opinion, probably the most significant UCI decision since the Tailhook scandal.”
To Brennan, the ruling also threatens to leave the reputation of Crawford “in tatters," a belief shared by Barry’s appellate attorney, David Sheldon.
“This is a vindication not only for Senior Chief Barry, but it stands as the first step in righting what is the pervasive unlawful command influence in military justice,” Sheldon told Navy Times. "In this case, the Judge Advocate General of the Navy, Vice Adm. James Crawford, caused a decorated Navy SEAL to be wrongfully convicted. "
Crawford is slated to be relieved by Vice Adm. John G. Hannink and retire at noon on Sept. 12 during a change of command ceremony at the Washington Navy Yard, according to invitations leaked to Navy Times.
Instead of shuffling Crawford off to retirement, however, Sheldon urged Chief of Naval Operations Adm. John Richardson to place him on “legal hold and institute proceedings against him" because justice “demands those responsible be held accountable and in this case it is Vice Adm. Crawford who should be punished.”
Navy officials at the Office of the Judge Advocate General referred Navy Times to the Pentagon.
In a written statement emailed to Navy Times, spokesman Lt. Cmdr. Daniel L. Day said that the “Department of the Navy is aware of the court’s opinion and is currently in the process of reviewing it.”
Neither Day nor other Navy officials have indicated whether the ruling will be appealed to the U.S. Supreme Court.
Barry’s case came to light only because a retired Navy rear admiral admitted that he helped pervert justice.
Barry was tried and convicted at court-martial by a military judge in San Diego in 2014 for allegedly forcing a girlfriend to engage in nonconsensual sexual intercourse, but doubts about his guilt dogged the case.
The flag officer who convened the SEAL’s trial, Navy Region Southwest commander Rear Adm. Patrick J. Lorge, considered vacating the verdict or granting clemency to Barry, but instead let stand a sentence of three years confinement and a dishonorable discharge, a decision he came to regret.
In both sworn affidavits and testimony during a special hearing convened 11 months ago, Lorge said that he felt political pressure on “many fronts” from civilian and military leaders to convict Barry.
His concerns were echoed by his Staff Judge Advocate Cmdr. Dominic Jones, who “strongly, and on multiple occasions, advised ... Lorge not to set aside the findings or sentence or order a retrial," according to the appellate decision.
A retired Navy admiral said political pressure and unlawful command influence caused him to rule against a Navy SEAL in a 2014 sexual assault conviction.
To Lorge, the advice he got from Jones appeared to be echoed during an April 30, 2015 visit by Crawford to his San Diego office. At the time, Crawford was a two-star admiral and the Deputy Judge Advocate General of the Navy.
During the powwow, Crawford gave Lorge “the impression that failing to approve the findings and sentence would place a target on his back,” a sentiment apparently repeated during a later telephone call between the flag officers, according to the appellate decision.
Crawford was later promoted to vice admiral and put in charge of the Navy’s criminal justice system.
As the Navy’s top lawyer, Crawford was called to testify during a special fact-finding hearing on Sept. 26 and 27 last year in Washington before Col. Vance H. Spath, the Chief Judge of the Air Force Trial Judiciary.
Ruling that neither Crawford nor Jones were “credible witnesses in this case," Spath suspected that their legal advice tainted Lorge’s decision.
As for Lorge, he sent Barry to prison because he believed “harm would befall the Navy if he did not fall in line" with his superiors, according to the appellate decision.
“Even though I was convinced then, and am convinced now, that I should have disapproved the findings, my consideration of the Navy’s interest in avoiding the perception that military leaders were sweeping sexual assaults under the rug outweighed that conviction at that time,” Lorge testified.
In her dissent, Judge Margaret A. “Meg” Ryan, a Marine veteran, seized on Lorge’s words. She didn’t dispute that Lorge felt pressure to send Barry to the brig but believed he might have misinterpreted Crawford’s advice.
She also felt the majority too broadly interpreted the statute governing UCI, producing a precedent that “will leave both the field and lower courts floundering to determine how and when unintentional conduct rises to an ‘unlawful’ level or constitutes ‘improper manipulation.’"
There’s little doubt that the Barry decision will sculpt cases percolating through the criminal justice system today.
Focus now shifts to San Diego, where four SEALs are undergoing court-martial for war crimes they allegedly committed at Village Stability Platform Kalach in the Chora District of Afghanistan’s Uruzgan Province on May 31, 2012.
Attorneys representing Special Warfare Operator 1st Class Daniel V. Dambrosio Jr. and two Special Operator Chief Petty Officers — Xavier Silva and David N. Swarts — and their former commanding officer, Lt. Jason L. Webb, have contended that the SEALs are innocent and Crawford meddled in their prosecutions, too.
Defense attorneys also have accused Crawford of unlawfully inserting himself into a probe involving the May 6, 2016 drowning of Seaman James Derek Lovelace during initial SEAL training at a San Diego pool.
Speaking through spokespersons, Crawford consistently has denied all of their allegations.