Burden of Proof

by John G. Hemry

  Lieutenant Commander Jones stood. "I have been detailed to this court-martial by order of the fleet judge advocate general's office. I am qualified and certified under Article 27(b) and sworn under Article 42(a). I have not acted in any manner which might tend to disqualify me in the court-martial."

  Paul listened to the declarations, remembering when he'd last heard them. Much of what the lawyers and judge would say to open the court-martial was written in stone, or at least in the Manual for Courts-Martial, to ensure every legal nicety had been observed. For some reason, this seemed to give the stately formality of the announcements extra weight.

  Judge Halstead looked toward the defense table. "Lieutenant Scott Silver, you have the right to be represented in this court-martial by Lieutenant Commander Jones, your detailed defense counsel, or you may be represented by military counsel of your selection, if the counsel you request is reasonably available. If you are represented by military counsel of your own selection, you would lose the right to have Lieutenant Commander Jones, your detailed counsel, continue to help in your defense. Do you understand?"

  Lieutenant Silver nodded firmly, his expression now studiously serious. "Yes, sir."

  "In addition, you have the right to be represented by civilian counsel, at no expense to the United States. Civilian counsel may represent you alone or along with your military counsel. Do you understand?"

  "Yes, sir."

  "Do you have any questions about your right to counsel?"

  "No, sir."

  "Who do you want to represent you?"

  "I wish to be represented by Lieutenant Commander Jones, sir."

  "Very well. Counsel for the parties have the necessary qualifications, and have been sworn. I have been detailed to this court by order of the judge advocate general's office of the Commander, United States Space Forces."

  Commander Carr left her table, walking briskly to take up a position where she faced both the judge and the members' table. "The general nature of the charges in this case allege culpable negligence which resulted in the death of an enlisted member of the United States Navy and extensive damage to US military property, and subsequent criminal acts to cover up responsibility for this death and damage. The charges were preferred by Commander, United States Naval Space Forces, and forwarded with recommendations as to disposition to Commander, United States Space Forces." Commander Carr faced Judge Halstead. "Your honor, are you aware of any matter which may be a ground for challenge against you?"

  "I'm aware of none."

  "The government has no challenge for cause against the military judge."

  Commander Jones stood again. "The defense has no challenge for cause against the military judge."

  Halstead focused on the defense table. "Lieutenant Silver, do you understand that you have the right to be tried by a court-martial composed of members and that, if you are found guilty of any offense, those members would determine a sentence?"

  "Yes, sir."

  "Do you also understand that you may request in writing or orally here in the court-martial trial before me alone, and that if I approve such a request, there will be no members and I alone will decide whether you are guilty and, if I find you guilty, determine a sentence?"

  "Yes, sir."

  "Have you discussed these choices with your counsel?"

  "Yes, sir, I have."

  "By which type of court-martial do you choose to be tried?"

  Lieutenant Silver looked confidently toward the members' table. "By members, sir."

  "Very well. The accused will now be arraigned."

  Commander Carr held up her data pad. "All parties and the military judge have been furnished a copy of the charges and specifications. Does the accused want them read?"

  Jones looked at Lieutenant Silver and whispered something. Silver's lips twitched in a smile and he nodded. "The accused wishes the charges to be read."

  "Very well." Carr positioned her pad where she could easily read it. "Lieutenant Scott Silver is charged with violations of the following articles of the Uniform Code of Military Justice.

  "Article 92, Dereliction in the Performance of Duties. In that Lieutenant Scott Silver, United States Navy, who should have known of his duties onboard USS Michaelson, CLE(S)-3, from about 20 August 2100 to about 19 September 2100 was derelict in the performance of those duties in that he negligently failed to ensure the proper operation and maintenance of equipment under his area of responsibility as Main Propulsion Officer.

  "Article 107, False Official Statements. In that Lieutenant Scott Silver, United States Navy, did, on board USS Michaelson CLE(S)-3, on or about 19 September 2100, with an intent to deceive, make to Captain Richard Hayes, United States Navy, his commanding officer, an official statement, to wit his knowledge of events onboard USS Michaelson, CLE(S)-3, the evening of 19 September 2100, which statement was false in that it failed to correctly state Lieutenant Silver's actual knowledge of and role in those events, and was then known by said Lieutenant Silver to be false.

  "Article 108, Military Property of the United States - sale, loss, damage, destruction or wrongful disposition. Specification One. In that Lieutenant Scott Silver, United States Navy, did, onboard USS Michaelson, CLE(S)-3, on or about 19 September 2100, without proper authority, willfully damage and destroy by ordering actions contrary to established safety procedures and regulations, military property of the United States, to wit all equipment located within the Forward Engineering compartment. Specification Two. In that Lieutenant Scott Silver, United States Navy, did, onboard USS Michaelson, CLE(S)-3, on or about 19 September 2100, without proper authority, willfully damage and destroy by use of unauthorized software the records contained within the engineering logs of the ship.

  "Article 110, Improper Hazarding of a Vessel. In that Lieutenant Scott Silver, United States Navy, did, on or about 19 September 2100, while serving as command duty officer and main propulsion assistant onboard USS Michaelson, CLE(S)-3, willfully and wrongfully hazard the said vessel by ordering a subordinate to take actions contrary to established safety procedures and regulations.

  "Article 119, Manslaughter. In that Lieutenant Scott Silver, United States Navy, did, onboard USS Michaelson, CLE(S)-3, on or about 19 September 2100, by culpable negligence, unlawfully kill Chief Petty Officer Vladimir Asher by ordering him to undertake single-handedly repairs of the power transfer junction in the Forward Engineering compartment in culpable disregard for the foreseeable consequences to others of that act.

  "Article 131, Perjury. In that Lieutenant Scott Silver, United States Navy, did, onboard USS Michaelson, CLE(S)-3, on or about 23 September 2100, in a statement under penalty of perjury pursuant to section 1746 of title 28, United States Code, willfully and corruptly subscribe a false statement material to the matter of inquiry, to wit the cause of the death of Chief Petty Officer Vladimir Asher and associated explosion and fire in the Forward Engineering compartment, which statement was false in that it did not reveal Lieutenant Silver's knowledge of Chief Asher's purpose in Forward Engineering nor Lieutenant Silver's orders to Chief Asher which directly led to the accident, and which statement he did not then believe to be true.

  "The charges are signed by Commander, United States Naval Space Forces, a person subject to the code, as accuser; are properly sworn to before a commissioned officer of the armed forces authorized to administer oaths, and are properly referred to this court-martial for trial by Commander, United States Space Forces, the convening authority."

  Paul's eyes had been fixed on Commander Carr as she spoke, but now he swiftly shifted his gaze to the defense table. Lieutenant Silver was standing at attention, his expression that of a man enduring assaults on his character with dignity. I have to give Silver credit. He's good. I bet that's why he asked the charges to be read, so he could act noble and aggrieved while listening to them.

  Judge Halstead looked at Silver as well. "Lieutenant Silver, how do you plead? Before receiving you pleas, I advise you that any motions to dismiss any
charge or grant other relief should be made at this time."

  Lieutenant Commander Jones answered instead of Silver. "Your Honor, the defense moves that all charges and specifications be dismissed in light of the lack of evidence directly implicating Lieutenant Silver as being guilty of any of the offenses listed."

  "The motion is denied. The purpose of this proceeding is to determine whether the evidence the government has compiled is sufficient to prove the charges brought against Lieutenant Silver. Do you have any further motions?"

  "No, Your Honor."

  Lieutenant Silver faced the members rather than the judge. "I plead not guilty to all charges and specifications."

  Halstead nodded. "Very well. Does the prosecution have an opening statement?"

  "Yes, Your Honor." Commander Carr also faced the members now. "The prosecution intends to demonstrate that Lieutenant Silver exercised negligence in his duties as main propulsion assistant, which caused the failure of a critical piece of equipment in Forward Engineering on the USS Michaelson. As a result of this, and in an attempt to conceal his negligence, Lieutenant Silver personally obtained a necessary spare and ordered Chief Petty Officer Asher to install single-handedly that spare on Saturday, 19 September 2100. In order to do so, Lieutenant Silver ordered Chief Asher to disable safety interlocks which further disabled the fire suppression systems in Forward Engineering, assisting Chief Asher in this by providing an officer's authorization. Following the explosion and fire that resulted in Chief Asher's death and extensive damage to the ship, Lieutenant Silver lied to his commanding officer about his knowledge of and role in the events. Lieutenant Silver then used software to destroy the records in the USS Michaelson's engineering logs which would have documented his role in the explosion, fire and death of Chief Asher, then subsequently swore to a false statement during a formal investigation of the accident. Lieutenant Silver should be found guilty as to all charges and specifications, for his culpable negligence which led to the death of a sailor under his command, for his lying to his commanding officer, for the destruction of government property engineered by him, and for his perjury during the investigation of the accident."

  Commander Carr returned to her seat, as Judge Halstead looked toward Commander Jones. "Does the defense have an opening statement?"

  "We do, Your Honor." Commander Jones walked to the same position Commander Carr had occupied. "The defense contends that the government lacks proof of the charges lodged against Lieutenant Silver. There is no evidence Lieutenant Silver engaged in the actions alleged by the prosecution, and if he did not commit those acts, then he did not make a false statement or commit perjury when describing his role in the terrible events onboard USS Michaelson the evening of 19 September 2100. While the loss of life and property onboard USS Michaelson is cause for deep regret, scapegoating Lieutenant Silver will not bring back Chief Asher or undo the events of that night. Lieutenant Silver is a dedicated Naval officer who has done his duty to the best of his ability. Since the prosecution lacks proof otherwise, he should therefore be found innocent on all charges and specifications."

  Commander Jones, his statement completed, returned to his seat. Silence reigned in the court for a brief moment as Judge Halstead seemed to be pondering his own thoughts. Then Halstead gestured to Commander Carr. "You may proceed, Commander."

  "Thank you, Your Honor. The United States calls as its first witness Petty Officer First Class Alysha Kulwari."

  Chapter Ten

  Petty Officer Kulwari, looking slightly uncomfortable in what appeared to be a new uniform, came down the aisle, her eyes fixed on the witness stand. Commander Carr stood before Kulwari, her posture now more relaxed, her expression encouraging. "Do you swear that the evidence you give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth, so help you God?"

  "I do, ma'am."

  "Are you Petty Officer First Class Alysha Kulwari, United States Navy, assigned to the engineering department on the USS Michaelson?"

  "Yes, ma'am."

  "Do you know the accused?"

  "Yes, ma'am. Lieutenant Silver's my - excuse me, Lieutenant Silver was my division officer for about a month."

  "In other words, you worked directly for Lieutenant Silver during that period. Is that correct?"

  "Uh, well, ma'am, orders would usually come through Chief Asher, but Lieutenant Silver gave him those orders, yes, ma'am."

  Commander Carr crossed her arms, her eyes still on Petty Officer Kulwari. "What can you tell us regarding the power transfer junction in Forward Engineering on the USS Michaelson during the period when Lieutenant Silver was serving as your division officer?"

  Kulwari's eyes flicked around the room, avoiding resting on Scott Silver as they did so. "Ma'am, about a week after Lieutenant Silver took over from Lieutenant Kilgary the junction controller started going bad."

  "It started going bad. The controller didn't just fail?"

  "No, ma'am. They don't do that. You see them start to go bad and they get worse and worse until they crap out. I'm sorry, ma'am, until they fail."

  "How long does it take them to fail?"

  "Usually two to three weeks. You can nurse them along and compensate for the problems for that long, but after that they're too bad to use anymore."

  "The controller is a critical part of the power transfer junction?"

  "Yes, ma'am. That junction won't work without it."

  "What happens if the junction doesn't work?"

  Petty Officer Kulwari bit her lip as she formulated her reply. "The ship can operate on the other power transfer junction in After Engineering, but she can't do everything. There are a lot of limitations."

  "Do you carry a spare controller onboard?"

  "Sometimes, ma'am."

  "Sometimes?"

  "Ma'am, I don't know why, but there's not enough spares of that controller to go around, so they get reserved for ships that are going out on long missions. If a ship's operating in the local area, we never carry a spare because we can get home in time if one starts to go bad."

  Commander Carr walked back and forth slowly in front of the witness stand. "To summarize, then, the controller in the power transfer junction in Forward Engineering started to fail about one week after Lieutenant Silver took over as your division officer. You had about two to three weeks before the controller would totally fail, and when it did fail the ship's ability to operate would be severely curtailed. Is that correct?"

  Petty Officer Kulwari nodded. "Yes, ma'am."

  "To your certain knowledge, was Lieutenant Silver informed of the impending failure of the controller?"

  "I'm sorry, ma'am. My . . . ?"

  "Your certain knowledge. Did you see or hear Lieutenant Silver being informed of the impending failure?"

  "Oh, yes, ma'am. I was standing in Forward Engineering maybe a couple meters from Chief Asher when he was talking to Lieutenant Silver about it."

  "What did Chief Asher say to Lieutenant Silver?"

  "I didn't catch every word, ma'am, but he was saying we needed to get a spare installed."

  "And what did Lieutenant Silver say in reply?"

  "Uh, something like 'I'm on it, Chief.' Something like that."

  "You're certain? Lieutenant Silver discussed the impending failure of the controller with Chief Asher in your hearing, and assured Chief Asher the issue was being addressed?"

  "Uh, yes, ma'am."

  "Did the controller eventually fail?"

  "Yes, ma'am, it did."

  "When?"

  "Friday, uh, 18 September. About noon, I guess. I came back from lunch and Petty Officer Lai told me the controller had gone belly-up, and everything was being routed through the power junction in After Engineering. Chief Asher told us he was going to talk to Lieutenant Silver about it."

  "Lieutenant Silver wasn't present? Even though a critical piece of equipment he was responsible for had failed?"

  "No, ma'am."

  "Did Lieutenant Silver come to
Forward Engineering at all that afternoon?"

  "No, ma'am, not that I saw and not that anybody else told me. But that wasn't unusual."

  "It wasn't? The ship's main propulsion assistant not visiting Forward Engineering wasn't unusual?"

  "Not with Lieutenant Silver, ma'am. We never saw him much."

  "You never saw him much?" Commander Carr paused to let the statement sink in. "Then what happened?"

  "We worked on other stuff, ma'am. There wasn't anything we could do about the controller until we got the spare, and it didn't show. When knock-off ship's work was announced I called Chief Asher and asked what we should do about the power junction and he told me Lieutenant Silver was working on it, and we shouldn't bother hanging around."

  "How did Chief Asher sound when he told you that?"

  "He was real unhappy with somebody, ma'am."

  "Are you certain of that?"

  Petty Officer Kulwari couldn't suppress a quick smile. "Ma'am, I've been around Chief Asher when he was real unhappy with someone, and believe me, you don't forget what he sounds like." The smile vanished. "Uh, sounded like, I guess I oughta say."

  Commander Carr nodded sympathetically. "What time was knock-off ship's work that afternoon?"

  "It's almost always 1700 in port. Sometimes 1730 or 1800 if there's an extra lot to do."

  "Petty Officer Kulwari, how would the controller be replaced? How many personnel does it require?"

  "At least two, ma'am. Two specialists, that is. They gotta know that gear. There's some kinda safety interlocks to keep the junction from overloading and blowing while the controllers are being swapped out."

  "Could one person do the job?"

  "If'n they were crazy, ma'am. They'd have to shut off the interlocks and then work real fast and if nothing made the junction overload without the controller in, they could do it. You'd have to be real good and a bit lucky."

  "So it's not impossible for one person to do it, but it's very unwise."

  "Yes, ma'am. I wouldn't do it."