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Posted on May 7, 2002 Print this Article

Feminist Attorney Files Questionable Affidavits in Support of Baseless Litigation

The belated response of attorney Susan Barnes to CMR’s Motion for Summary Judgment heaped new falsehoods on top of old ones. None of them provided credible support to the Plaintiff’s original accusations. The filing was composed of several elements, listed and analyzed below: 1. Personal Attacks Capt. Charles Nesby, USN (Ret.) Susan Barnes has presented retired Navy Capt. Charles Nesby, a former commander of Training Wing Two at NAS Kingsville, TX, as her star "expert witness." In 1993, Nesby recommended that one of his students, then-Lt. Carey Dunai, be accepted for F-14 training. Nesby has never spoken to Elaine Donnelly, but has nevertheless attacked her character and motives in a "drive-by declaration" that was mean-spirited, inconsistent with prior testimony, apparently motivated by an admitted egalitarian agenda, and repeated by Barnes seven times in documents filed with the Court. In response, CMR attorneys cited seven relevant precedents in support of a motion to strike Nesby’s declaration. CMR also noted the following: · Capt. Nesby was surreptitiously named as an "expert witness" by Lohrenz with the apparent approval of the Navy JAG, even though he (Nesby) had previously testified under oath that he had no first-hand knowledge or expertise that would qualify him to comment. In testimony taken by the Naval Inspector General in 1996, Nesby admitted that his sole source of information in this matter was Lohrenz herself. Transcript, July 1, 1996, p. 16) · In his declaration, Nesby claimed that Lohrenz’s performance worsened because of publicity about the CMR Special Report, which caused the landing signal officers (LSOs) to be "intimidated." That theory was previously contradicted by Lohrenz herself, who told the Field Naval Aviation Evaluation Board (FNAEB) that "The big majority of my squadron mates have been very supportive of me in my dealings with the press articles that have been written lately. If you had to pick the TOMCAT squadron to be in, VF-213 would be the one. There is not a better group of people." In several contemporaneous interviews, Lohrenz also insisted that she was fully capable of "compartmentalizing" stress. · Nesby’s declaration was rife with pure hearsay, involving conversations with some people he did not even name. It attached the word "false" to a long list of facts already established to be true, and parroted Barnes’ unsupported claim that the FNAEB was "set aside." That claim was investigated by the Naval Inspector General, and dismissed as "Unsubstantiated" in the 1997 Air Wing 11 Report. · Nesby declared that Lohrenz’s propensity to fly "high and fast" on approach to a carrier was not inherently dangerous--a claim that was refuted numerous times in the statements of instructors who, unlike Nesby, actually flew with Lohrenz in the F-14. Retired Navy Capt. W.S. "Bud" Orr, whose record of achievement in carrier aviation and training was far more extensive than that of Capt. Nesby, testified that Lohrenz’s records in the Fleet Replacement (training) Squadron (FRS) were the worst he had ever seen. Capt. Orr also testified that he had told Donnelly in 1995 that the "high and fast" landing techniques described by LSOs in her training records were very risky, especially in "pitching deck" conditions. · In previous testimony given before the Naval Inspector General in 1996, Nesby said that he considered himself a mentor and "advice giver" to minority and female aviators who encountered career difficulties after graduation from the Training Command. And in a series of articles published in the Corpus Christi Caller-Times, (Feb. 10-11, 1997) Nesby told reporter Vivienne Heines that "the military’s stated goal is to have a diverse military that is a homogenic (sic) reflection of the society we recruit from at large." He also described himself as an "easy grader," who expected that higher grades awarded by him in training would be "averaged out" by others. · Capt. Nesby, who is African-American, advocated a controversial unwritten policy at the Training Command that was designed to promote women and minorities into combat jet training. The program was later discarded because of opposition from instructor-pilots. · Nesby’s declaration took issue with former instructor Burns’ chronicle of Lohrenz’s "pink sheets" for unsatisfactory performance. But even if Nesby’s easy-grading standards were applied, Lohrenz’s documented training failures would still be: four downs (requiring reflys), two signals of difficulty (SODs), one carrier disqualification, two Human Factors Boards in the FRS, and one more in the fleet squadron. Historically, two pink sheets have been enough to end an aspiring pilot’s career in carrier aviation. (Then-Rear Adm. Jay Yakeley, Transcript of Navy IG testimony, July 17, 1996, p. 21) · Nesby trained Carey Dunai in small aircraft designated "T" for "trainer," not "F" for "fighter." One of her instructors was Donovan Lohrenz, her future husband, with whom she flew nine times. Lohrenz claimed during the FNAEB proceeding that she had flown with instructor Lohrenz only once, which caused the Board to question her honesty as well as her flying abilities. 2. Declarations Inconsistent with Previous Sworn Testimony Cmdr. Frederick J. Kilian, USN (Ret.) The mountain of contemporaneous evidence and official reports standing in contradiction to her case has forced Lohrenz to resort to unethical tactics and unsupported arguments that are implausible and unworthy of the Court. The declaration of retired Cmdr. Fred J. Kilian was an egregious example: · Kilian tried to disavow his own actions in calling for the FNAEB of Carey Lohrenz, and to recant previous sworn testimony given to Air Wing 11 investigators. The former Commander of fleet squadron VF-213 claimed that then-Commander William "Whisky" Bond, the training squadron’s Executive Officer, gave him a summary of Lohrenz’s training records just prior to deployment of the carrier Lincoln in April of 1995. Kilian used that summary as one point of reference during the FNAEB shortly thereafter. · With absolutely no evidence, Kilian has declared that the document was given to him by Cmdr. Bond "because he might need it." He insinuated that the document was suspect because details about Lohrenz’s training records in the VF-124 summary, Jerry Burns’ signed letter to Elaine Donnelly, and the CMR Special Report, were very similar. Never mind that Donnelly has never met or talked to Cmdr. Bond, and the facts in all three documents coincided because they happened to be true. · In addition to being ludicrous, Kilian’s implied conspiracy theory clashes with the calendar. Cmdr. Bond, the Executive Officer of the FRS, could not have "passed" any documents to Kilian under the circumstances described because VF-124 had been disbanded in September of 1994. That was two months prior to Burns’s first telephone call to Elaine Donnelly, and approximately seven months prior to the departure of the carrier Lincoln and publication of the CMR Special Report. · Kilian has denied knowledge of any problems with Lohrenz’ training prior to April 1995, but FNAEB Board records indicate that he had served on a February 1995 Human Factors Board that surely reviewed FRS training scores compiled in 1994. Indeed, if those records were available to Kilian and others in September of 1994, (and they were), the entire case against Donnelly and CMR crumbles: a) Since persistent questions about the women’s training records were known and documented seven months earlier, Lohrenz cannot claim that her career was ruined by a report published by CMR in April of 1995. b) Kilian’s questionable declaration does not help Barnes’ case because it is contradicted by his own words, as stated in June 1995. In his endorsement of the FNAEB, Kilian wrote of Lohrenz’s performance: "I feel that all the warning signs of impending danger exist...I believe that to allow her to continue in the carrier environment could in fact put lives at risk, and I am unwilling to do that." c) Furthermore, if Kilian’s latest declaration is to be taken at face value, then he wrongly removed Lohrenz from carrier aviation through the FNAEB that he initiated and endorsed, but now repudiates. That would mean that Fred Kilian, not Donnelly and CMR, is responsible for the misfortunes that have befallen Lohrenz. CMR stated in its response that "The Kilian declaration is the ultimate exercise in dissembling, non-truth, and half-truths intended to deceive. It deserves absolutely no weight whatsoever by this Court." Lt. Cmdr. Thomas Marotta, USNR Susan Barnes’ collection of declarations included one signed by Reserve Lt. Cmdr. Thomas Marotta, who praised Lohrenz’s abilities as an aviator. The declaration was questionable, since Marotta flew with Lohrenz only a few times early in her training, and graded a simulator flight in which she "crashed." During testimony before Air Wing 11 investigators in 1996, Marotta commented on Lohrenz’s unwillingness to correct her unsafe flying techniques: "somebody that flies high and fast in the F-14 is eventually going to have to pull a lot of power to land that thing. In the F-14A, if you do that, it can be disastrous, and there might be nothing the LSOs can do to stop it." (Transcript of testimony, July 1, 1996, pp. 8-9) Cmdr. Ken Carel, USNR The declaration of Navy Reserve Cmdr. Ken Carel raised questions about candor as well as obvious bias. · Lt. Pamela Lyons Carel, a former F-18 pilot and the wife of Cmdr. Carel, joined Lohrenz in filing an unsuccessful lawsuit against the Navy in 1995. The women also demanded what turned into a massive investigation of sex discrimination in Air Wing 11. · Cmdr. Ken Carel described himself as the "head training officer" at VF-124 during the time that Hultgreen and Lohrenz were there, but Patrick Burns disputed that claim in an affidavit submitted with CMR’s filing. Burns attached a letter from the true head of the training department, who recommended Burns for a Navy Achievement Medal in January of 1994 for "superior performance" as a VF-124 instructor. · Ken Carel claimed that the squadron "Grading Criteria" for determining an unsatisfactory grade was 2.75, lower than the 2.90 shown in the CMR Special Report. His declaration was then cited by Barnes’ in trying to persuade the Court that the document in question might have been created on a computer by persons unknown. In response, Burns attached to his affidavit the cover and additional pages of the June 1993 VF-124 "Gunfighters" Instructor Manual. The pages are clearly marked with a circular stamp reading: "Department of the Navy -- Reproduced at Government Expense." 3. The Unsigned Affidavit Lt. Nigel MacWilkinson, USNR Attorneys for CMR cited several precedents in moving to strike the unsigned declaration of Reserve Lt. Cmdr. Nigel MacWilkinson, a former instructor and LSO in the FRS VF-124. Barnes has dishonestly tried to use this declaration in support of certain "undisputed material facts" that are very much in dispute. 4. Citations of Irrelevant Legal Precedents · Barnes has tried to persuade the Court to strike from the record official Navy documents, such as the Air Wing 11 Report and the FNAEB proceeding, that are devastating to her case. CMR cited 19 different precedents that contradict her contentions. · Barnes has repeatedly made the unsupported claim that the FNAEB was conducted improperly, and its decision was later "voided" by the Navy. The Air Wing 11 Report specifically refuted both contentions. At the time Lohrenz was ranked 113 of 113, and "[her] grades were below minimum standards." Lohrenz never flew any aircraft in the carrier environment again. The Air Wing 11 Report also noted that Lohrenz was on a "special interest" list due to substandard performance as early as January 3, 1995, more than three months prior to publication of the CMR Special Report. · Under several leading precedents cited by CMR, public figures are not eligible to sue for libel or defamation. To get around that problem, Lohrenz has tried to deny the existence of public controversy prior to publication of the CMR Special Report. Lohrenz complained that even though CMR identified her with the pseudonym "Pilot B," the ensuing stress caused her to lose confidence and ultimately her career. But if the pseudonym did not disguise her identity, then clearly she was a public figure and ineligible to sue for defamation. · Despite abundant evidence to the contrary, Lohrenz suggested to the Court that she was assigned unwillingly into the field of carrier aviation. But if Lohrenz was forced to fly the F-14, then that alone, not Donnelly and CMR, would account for her failure. 5. Attacks on the First Amendment Rights of Elaine Donnelly Any Plaintiff filing a libel/defamation lawsuit has the burden of proving that the Defendant acted "recklessly" and with "actual malice." In this case, all the evidence is to the contrary: · Shortly after Lt. Patrick Burns contacted Elaine Donnelly in November of 1994, she went straight to high-level officials who were in a position to investigate the situation and make corrections if warranted. These included Sen. Strom Thurmond (R-SC), then-Chairman of the Senate Armed Services Committee, the late Adm. Jeremy Boorda, then-Chief of Naval Operations, and Adm. Stanley Arthur, then Vice CNO, who met with Donnelly three times over a period of four months. · At the last of those meetings, Donnelly was shown a report signed by then-Rear Adm. Lyle Bien, who conducted an investigation in January of 1995. The Bien Report confirmed that the information Donnelly had presented in her letter to Sen. Thurmond was "largely accurate." Donnelly also came to realize that the Navy was not going to do anything about it. · Contrary to what Donnelly knew to be true, Bien reported that none of the instructors he had interviewed, including her source, Lt. Burns, had told him that the women were not competent to fly the F-14. This is why the CMR Special Report was published on April 25, 1995. As stated in that report: "The question at issue here is not whether women should serve in combat squadrons, but whether...all naval aviation trainees should be held to the same high standards...CMR hopes that disclosure of this information will enable Navy personnel...and the American people, to engage in a responsible discussion that leads to constructive reforms, before heightened risks result in the needless loss of more young lives." Lohrenz and Barnes have argued that since Donnelly is on record in opposition to women in combat, that is evidence of "actual malice." Donnelly stands accused of writing a 1991 monograph for academic credit titled "The Politics of the Pentagon," of testifying before Congress in 1979 against the future registration of young women for the draft, and of testifying before the Senate Armed Services Committee in 1991 in opposition to women in combat. Donnelly is also faulted for conscientiously discharging her duties as a member of the 1992 Presidential Commission on the Assignment of Women in the Armed Forces, and for writing a January 16, 1995, letter to the Chairman of the Senate Armed Services Committee, asking for his help in finding out whether allegations of double standards in naval aviation were true or false. It would seem that Donnelly’s First Amendment rights of free speech would be at their peak in all these instances. The Plaintiff and her attorney falsely conclude, however, that Donnelly’s stated opinions are proof of "conspiracy and "reprehensible conduct," for which she must be punished with continued litigation. In essence, Lohrenz v. Donnelly & CMR is a politically motivated SLAPP suit (Strategic Litigation Against Public Participation). CMR attorneys cited 16 relevant precedents to refute these arguments. Conclusion For the past years consumed by this litigation, CMR attorneys have not found it necessary to change or retract any responses made to the charges leveled by Plaintiff Lohrenz. Nor have Elaine Donnelly or her source, Lt. Patrick J. Burns, found it necessary to withhold discovery documents, to refuse to answer inquiries, or to invent new "evidence" by soliciting questionable statements from others. The responses to the Court from Donnelly and Burns have been consistent and truthful throughout. CMR attorneys are confident of vindication because in cases such as this, truth is the ultimate defense. * * * * * * * CL050702b Note: Additional legal arguments, key documents, and significant testimony are posted in the Issues/CMR Lawsuit section of www.cmrlink.org. Tax-deductible contributions to the CMR Legal Defense Fund may be addressed to CMR/LDF, P. O. Box 51600, Livonia, Michigan 48151.
Posted on May 7, 2002 Print this Article