The Navy’s top lawyer stands accused of unlawfully meddling in criminal cases targeting America’s elite commandos, and he’s being grilled by attorneys seeking to overturn the conviction of a Coronado-based Navy SEAL whom his admiral and other officers thought was innocent.
Legal experts consulted by The San Diego Union-Tribune agree that the allegations swirling around Vice Adm. James Crawford III, the Navy’s judge advocate general, are highly irregular. They point to his deposition this week in Washington, D.C., a session in which one of the attorneys questioning him said the admiral was unable to recall key details about a Navy SEAL’s rape case that he’s accused of illegally influencing.
Crawford has repeatedly declined to comment for stories about the case after a military appellate court began investigating the claims of his intervention.
That case involves an ongoing appellate hearing for Senior Chief Special Warfare Operator Keith Barry, who was court-martialed and convicted of rape in San Diego in 2015. He received a sentence of three years in prison and a dishonorable discharge. He has completed his prison term and left the Navy SEALs, but is appealing his conviction in hopes of restoring his reputation.
Barry’s appeal gained national attention when the admiral in charge of validating or reversing his rape conviction made a stunning declaration: In a sworn affidavit, retired Rear Adm. Patrick Lorge, the former commander of Navy Region Southwest, alleged that he wanted to overturn Barry’s verdict because it lacked sufficient evidence — but didn’t do so partly because of pressure from Crawford.
Lorge claimed that Crawford encouraged him to let Barry go to prison partly to help preserve the Navy’s reputation and appease the Obama administration and congressional critics of the military justice system. Crawford believed the military needed to project a tougher image in the fight against sexual assault and warned that a clemency decision would hurt Lorge’s Navy career, Lorge alleged.
“The Barry case has been forwarded to a new convening authority, senior to the original convening authority, and the fact-finding process is underway,” said Patricia Babb, spokeswoman for the Office of the Judge Advocate General. “The Navy remains, as always, dedicated to pursuing justice in a fair and impartial system. To preserve the integrity of that process, the Navy will not comment further on the case.
Barry applellate attorney David Sheldon told the Union-Tribune that Crawford confirmed he discussed the Barry case with Lorge. He also disclosed the existence of documents and messages exchanged at the highest levels of the Navy about Barry, records that have never been shared with the SEAL’s attorneys.
Sheldon said that he was not authorized to discuss what those documents might reveal or the names of the brass and others who handled them.
A key hearing in the appellate process is slated for Aug. 18. That will likely pave the way for a lengthier court investigation into the credibility of Crawford and other high-ranking officials in this situation.
Crawford’s highly unusual deposition came amid new accusations that he injected himself into another San Diego case involving the May 6, 2016 drowning of Seaman James Derek Lovelace during initial SEAL training.
On April 10, Naval Special Warfare Command announced that after a thorough review they would not charge any of the unnamed SEAL instructors who were present when Lovelace died.
A San Diego County medical examiner’s autopsy report revealed that a SEAL instructor repeatedly dunked Lovelace during Combat Swimmer Orientation, a test in the first week of BUD/S training to assess a SEAL candidate’s swimming abilities, and that his drowning was exacerbated by an anomalous coronary artery, a heart condition that might have contributed to sudden cardiac death during the intensive exercise.
Although Lovelace appeared conscious when pulled from the pool, witnesses said his face had turned purple, his lips blue.
In the wake of the drowning, the SEALs didn’t investigate themselves. They forwarded the case to San Diego-based Navy Region Southwest’s Legal Services Office to coordinate with agents from the Navy Criminal Investigative Service, often shortened to “NCIS.”
Saying that they could not prove that a crime had been committed, they cautioned against prosecuting the SEAL instructors, according to a series of written and spoken statements by top Navy Special Warfare Command officials in April.
But the Lovelace probe apparently didn’t end there.
Among internal Navy records leaked over the past two weeks to the Union-Tribune is an email sent from Navy Capt. Donald C. King — the Staff Judge Advocate for Navy Region Southwest — to Blair Perez, the Executive Assistant U.S. Attorney for the Southern District of California, and Michelle Pettit, a federal prosecutor assigned to the National Security and Cybercrimes Section.
King asks Perez whether she remembered “that case we talked about that the Navy declined to prosecute?”
Vice Adm. Crawford, King said, “ordered a second look” at the Navy Region Southwest recommendation to forgo charging the SEALs tied to the drowning. NCIS agents, however, took it to the Vice Chief of Naval Operations “who declined to prefer charges,” and then Chief of Naval Operations Adm. John M. Richardson, but “I was just informed that they were going to pitch it to your office,” he wrote.
King urged the federal prosecutor assigned to the case to speak with an unnamed investigator “before they decide to go forward” because she “uncovered a lot of evidence” that might not be included in the Report of Investigation they prepared in the Lovelace case.
Both Perez and Pettit are JAGs in the Navy reserves, with Pettit currently serving as an Appellate Judge on the Navy Marine Corps Court of Criminal Appeals.
On July 13, Perez wrote back to King to tell him that the federal prosecutor handling general crimes, Fred Sheppard, already had met with King’s supervising investigator “and had a very good discussion.”
In another email, Sheppard added that he was reviewing the case “in depth” over “the next week or two.”
The Union-Tribune has been unable to confirm whether federal prosecutors will charge the SEAL trainers alleged to be involved in the Lovelace case or not. Neither Sheppard nor Perez returned messages seeking comment and Capt. King referred all questions to public affairs officers at Navy Region Southwest. They declined comment.
Despite King’s email, Crawford’s involvement in the Lovelace case remains murky.
A memorandum of understanding guides how and when the Navy can hand off criminal cases to the U.S. Department of Justice, which then can assert jurisdiction in the matter because the death occurred on federal property.
A team of Navy investigators was ordered to Coronado to review the case on the behalf of Vice Chief of Naval Operations Adm. William F. Moran’s office, and they concurred with the previous decision to not prosecute the SEALs.
Once the Navy’s decision is final, NCIS agents can then bring the case to federal prosecutors, which is what might have happened with the Lovelace drowning.
In an email to the San Diego Union-Tribune, NCIS spokesman Ed Buice insisted that Crawford didn’t direct agents “to take this investigation one way or the other.”
”In fact,” Buice wrote, “he recused himself from the decision-making process regarding this investigation once it went above (Navy Special Warfare) because he wanted to remain neutral in his advice to the (Chief of Naval Operations) on this matter.”
Citing King’s email, others aren’t so sure. When brought to Jeremiah Sullivan, the San Diego-based attorney defending one of the unnamed SEAL instructors, he accused the Navy of committing a “miscarriage of justice” through “venue shopping” the case to federal prosecutors. He’s called for more investigations into Crawford’s role overseeing criminal probes.
“The Navy determined that no crime has been committed,” he said. “Is the JAG Corps circumventing justice here by shipping a case to the U.S. Attorney’s office? It looks to me that they’re pawning off their bad cases that are too weak to prosecute.”
Word that the Union-Tribune had received records in both the Barry and Lovelace cases triggered numerous, sometimes frantic, calls from top Navy officials nationwide on Monday and Tuesday, with flag officers or their representatives inquiring into Crawford’s involvement in both matters.
Eugene R. Fidell, the military law instructor at Yale Law School, said both cases possibly linked to Crawford were very unusual but pointed out the need for broader reforms to the way the armed forces dispense justice.
“These cases illustrate that Congress needs to get serious about the military justice system and turn it from an 18th century system into one fit for the 21st century,” said Fidell. “Military decisions on who gets prosecuted, and for what, are based on a system that was used by King George III. Until that changes, you’ll continue to see controversies like these.”
Fidell has long advocated for lawmakers to strip commanders of the power to decide who is prosecuted, to pick jurors and to vacate verdicts and sentences, vesting charging authority instead with senior attorneys independent of the chain of command and jury selection with an outside and impartial commissioner.