Retired Rear Adm. Patrick J. Lorge charges in a May 5 signed affidavit that the then-judge advocate general of the Navy and her deputy tried to persuade him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Mr. Lorge’s career.
The extraordinary charges from Mr. Lorge go to the very top of the Navy legal system and throw into question whether a sailor can get a fair trial in the politically charged atmosphere of military sex assault cases.
Based on Mr. Lorge’s testimony, attorneys for Senior Chief Petty Officer Keith E. Barry filed an appeal with the U.S. Court of Appeals for the Armed Forces. Chief Barry contends that the sexual contact was consensual. The accuser described their relationship as filled with “crazy sex.”
“The new evidence in [Chief] Barry’s case establishes unlawful command influence,” his attorneys argue, asking the appeals court to reverse the conviction and order a special investigation.
Mr. Lorge’s May 5 affidavit says he served as convening authority overseeing Chief Barry’s court-marital. A military judge — Capt. Bethany L. Payton-O’Brien — convicted Chief Barry in October 2014 of a sexual assault charge and sentenced him to a dishonorable discharge and three years in prison. Mr. Lorge reviewed the verdict in 2015 during the clemency phase.
Mr. Lorge said he came to believe that there was insufficient evidence to convict and wanted to overturn the verdict. His staff judge advocate advisers tried to talk him out of it. Failing, they then brought in the Navy’s powerhouse admirals to talk him out of it.
“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 recalls. “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 the Navy faced at the time.”
He did not recall the specifics, but a defense attorney who was apparently present said Adm. Crawford told Mr. Lorge that overturning the conviction would end Mr. Lorge’s career. Mr. Lorge retired later that year, as scheduled.
“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,” Mr. Lorge wrote. “Absent the pressures described above, I would have disapproved the findings in this case.”
In a direct message to the appellate judges, Mr. Lorge said: “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.”
The appeal was filed by attorney David P. Sheldon and Navy Lt. Jacob E. Meusch, a judge advocate.
“Senior Chief Barry, a decorated Navy SEAL, stands wrongly convicted,” Mr. Sheldon told The Washington Times. “This is quite possibly one of the worst cases of unlawful command influence in military justice since Congress passed the Uniform Code of Military Justice. It implicates those who have served and are currently serving in the highest echelons of the Office of the Judge Advocate General of the Navy and undermines the very foundation of military justice. And while the military justice system failed Senior Chief Barry, he remains hopeful that justice will ultimately prevail.”
Mr. Lorge said that, even before he spoke with the two admirals, he realized that if he overturned the conviction, there would be trouble on Capitol Hill, where a number of lawmakers have regularly criticized the response of the armed forces to sexual assault accusations within the ranks.
“I perceived that if I were to disapprove the findings in the case, it would adversely affect the Navy,” he said. “Everyone from the president down the chain and Congress would fail to look at its merits and only view it through the prism of opinion. Even though I was convinced then, and am convinced now, that I should have disapproved the findings, my consideration of the Navy’s interests in avoiding the perception that military leaders were sweeping sexual assaults under the rug outweighed that conviction at the time.”
Mr. Lorge is a Naval Academy graduate who flew a variety of fighter aircraft during a 34-year career. He retired as commander of Navy Region Southwest, a post akin to a landlord overseeing major facilities.
Chief Barry’s defense contends the sexual contact was consensual. He and the accuser dated for about a month, according to a defense court filing, which portrayed an intense sexual relationship.
The accuser described their first sexual encounter as “like crazy sex. It’s a little rough. … I am in the hands of a sex god and he is doing things to my body that I had no idea,” she told Navy Criminal Investigation Command agents.
“This guy is so hot and he is so experienced and it’s great to have great sex,” she said of their second encounter.
During their last days together, Chief Barry told the accuser that he was not interested in a relationship and found her opinions ridiculous, the defense document says.
In January 2013, in a hotel room on a naval base in San Diego, he tied her up, which she found sexually exciting, she told investigators. She said he then forced anal sex for 30 seconds to two minutes. She hugged and kissed him afterward and talked about getting together the next weekend, the defense filing says.
After talking with female friends, the accuser decided she had been raped and started making accusations in Facebook messages. She eventually filed charges.
A lower appeals court, the U.S. Navy-Marine Corps Court of Criminal Appeals, upheld the conviction, saying the prosecution presented sufficient evidence that she did not want to engage in anal intercourse.
The court described the offense in its October opinion: “He then, with [victim’s] consent, digitally penetrated her anus. Next, however, without seeking her consent, the appellant penetrated her anus with his penis. AV immediately responded by telling him no several times and pleading with him to stop. When it became apparent to AV that the appellant was not going to stop, she then asked him to ‘[p]lease, go slow.’”
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