Burden of Proof

by John G. Hemry

  "That's right. I was informed there'd been an explosion and a fire, which was still being fought at that time."

  "Who informed you of that, Captain? Who paged you?"

  "Chief Petty Officer Imari, the in-port officer of the deck."

  "Did you speak with Lieutenant Silver at that time, sir?"

  "No. I assumed he was engaged with dealing with the shipboard emergency."

  "You then returned to the ship."

  "Yes. As fast as possible." Hayes' face had grown progressively grimmer, apparently due to recalling the events of that evening.

  "What did you find on the quarterdeck?"

  "Chief Petty Officer Imari was fielding calls and information, and relaying those to Lieutenant Silver."

  "Then Lieutenant Silver briefed you on the current situation, sir?"

  Captain Hayes frowned. "He tried when I told him to, but he didn't seem to have a handle on a lot of things. General impressions, but few details. I finally told Chief Imari to give me a rundown."

  "Can you give an example of this lack of detail on Lieutenant Silver's part?"

  "Certainly. The, uh, teams sent to assist us from other ships. All Silver could tell me was that some had come aboard. Chief Imari told me what ships they'd come from and what they were doing. She knew the Midway's people were setting up a temporary airlock to assist our own Damage Control team, for example."

  "Did Lieutenant Silver tell you the accident had taken place in Forward Engineering?"

  "I didn't need him to tell me that. Chief Imari told me when she paged me."

  "Did Lieutenant Silver tell you a piece of equipment in Forward Engineering wasn't operating properly?"

  "No."

  "Did Lieutenant Silver tell you he'd acquired a spare for that piece of equipment and passed it on to Chief Asher?"

  "No."

  Paul felt like flinching every time Captain Hayes bit off a reply. Each "no" came out harder. I do not want to be chewed out by this man. I'm sure I will be someday, but now I know it's not going to be any fun.

  "Did Lieutenant Silver then or later tell you that Chief Asher could have been in Forward Engineering, working on that piece of equipment?"

  "No."

  "Did Lieutenant Silver then or later inform you that he knew of a possible cause or contributing factor to the explosion, and the likely reason for Chief Asher's presence there?"

  "No."

  "Objection." Jones looked toward Carr. "Trial counsel is covering the same ground repeatedly."

  Judge Halstead looked questioningly at Commander Carr. "I tend to agree. Counsel?"

  Carr smiled in a professionally courteous way. "I had just finished going over those points, Your Honor."

  "The objection is sustained. Get on with it."

  "Yes, Your Honor. Captain Hayes, at any point were you approached regarding the need to acquire a spare controller for the power transfer junction in Forward Engineering?"

  "No, I was not."

  "Sir, were you informed the ship could not get underway as scheduled on the next Monday because of a problem with equipment in Forward Engineering?"

  "No."

  "When did you first discover that problem existed?"

  "In the course of an internal investigation I authorized to resolve some new information regarding the events of 19 September."

  "At that time you were informed of the problem by engineering personnel?"

  "No. I was informed of the problem by an officer outside of engineering."

  "Do you, sir, as commanding officer of the USS Michaelson, believe you received complete and accurate information from Lieutenant Silver on the evening of 19 September?"

  Hayes looked directly at Silver, who looked away quickly. "At this point in time I do not believe I may have ever received complete and accurate information from Lieutenant Silver. As for the night of 19 September, I have no doubt that Lieutenant Silver deliberately chose to withhold critical information from me."

  "Then Lieutenant Silver no longer has your trust and confidence?"

  "I never want him on my ship again. I never want him in any position of responsibility in the US Navy again."

  "Thank you, Captain Hayes. No further questions."

  Lieutenant Commander Jones had a determined look on his face as he approached the witness stand, as if he were bracing himself for battle. "Captain Hayes, how long had you been commanding officer of the USS Michaelson as of 19 September?"

  "About a month."

  "Only a month? That's a short time to learn all there is to know about a ship and its crew, isn't it, sir?"

  Hayes smiled crookedly. "It's a challenge."

  "Are there things you still don't know about the ship?"

  "You'll have to clarify that question. If you mean I don't know every single thing there is to know, then of course that's true. If you're asking if there's anything important I haven't learned, I doubt it."

  "Is it possible, sir, that you could have been informed about the problem with the power transfer junction in Forward Engineering and, in the midst of so much else to do and to learn, misplaced that information?"

  Hayes' eyes narrowed. "No."

  "Sir, by your own admission, there are still some things -"

  "No, Commander. The status of that piece of equipment was critical to my ship being able to accomplish her mission. I would not have forgotten it."

  Commander Jones eyed Hayes for a moment as if deciding whether to pursue the point or not. His next question revealed he'd decided to try another tack. "Captain Hayes, you earlier indicated you were told about the problem with the power transfer junction by an officer on your ship. Who was that officer?"

  Commander Carr was on her feet. "Objection, your honor. The question is immaterial."

  Jones faced Judge Halstead. "Your honor, I am attempting to establish possible prejudice."

  Halstead raised one eyebrow. "By whom? Captain Hayes?"

  "No, sir, by this other officer."

  "Your Honor," Commander Carr stated, stepping forward, "the identity of that officer is irrelevant to this trial. We've already established that the information regarding the power transfer junction was factual. Why does it matter who reported it?"

  "Your Honor, evidence tainted is evidence that is inadmissible in court."

  Judge Halstead bared his teeth in a humorless smile. "Counsel, I'll be the one deciding what is and is not inadmissible."

  Jones hesitated as if regretting his last statement. "I'm sorry, Your Honor. That is true and I did not mean to imply otherwise."

  "Thank you, Counsel. Does the counsel for the defense intend offering proof of bias, proof that some evidence introduced is in fact inadmissible?"

  Paul watched the argument with a icy feeling in his gut. They're arguing about me. Am I going to get ripped apart on that witness stand, my motivations and own professionalism subjected to trick questions and negative interpretations? I knew I ran a risk of this. I can handle it if it comes to that. But I really hope Carr wins this argument.

  Jones nodded with every appearance of confidence. "Yes, Your Honor."

  Commander Carr let skepticism show. "Your Honor, if counsel for the defense had such proof, why did he wait until now to introduce this line of argument? After trial counsel has entered so much evidence into the trial?"

  "Good question, Counsel. Commander Jones?"

  Jones looked back at Halstead confidently. "Your Honor, defense actions evolve as the trial proceeds. Surely trial counsel will not dispute that, or the right of the defense to introduce new issues in the course of defending the accused."

  "Your Honor, a fishing expedition is not introducing new issues. It is a distraction from the business of the court-martial."

  "Your Honor, if trial counsel is so certain of the tactics and questions to be pursued by the defense, I would respectfully have to inquire as to the source of her information."

  Paul tried not to openly wince. That's a real good point. Jones is better than I gave
him credit for. But Carr's supposed to know him! Keep me off that witness stand, Commander.

  Judge Halstead raised the fingers on one hand to halt the argument among the counsels. "You've both brought up legitimate arguments. I will allow defense counsel to pursue his line of questioning, but if defense counsel attempts to divert this court-martial from its course or engage in a prolonged fishing expedition, I will bring it to a halt. Is that clear, counsel?"

  Jones nodded. "Yes, Your Honor."

  "Objection overruled. Proceed, counsel."

  Commander Carr returned to her seat, tight-lipped, and gave Paul a passing glance, her eyes conveying regret for a moment.

  Commander Jones went back to the witness stand, where Captain Hayes had sat watching the by-play impatiently. "Captain, I repeat, who brought this information to your attention?"

  "My collateral duty ship's legal officer."

  "And who is that, Captain?"

  "Lieutenant Junior Grade Sinclair."

  "Thank you, Captain. No further questions."

  Paul stared at Jones, then back at Commander Carr, who gave Jones' back a hard, questioning look. Jones went to all that trouble just to ask my name? There's got to be more to this. I wonder what?

  Captain Mashiko nodded in greeting to Captain Hayes. "Captain, Lieutenant Silver has earned promotions to his current grade, indicating good performance evaluations. How do you reconcile that with your current opinion of Lieutenant Silver's performance?"

  Captain Hayes shook his head. "Captain, I don't know what Lieutenant Silver did in his earlier assignments. All I know is what he did on my ship. I regard that as more than sufficient grounds for reaching my conclusions."

  "I'm assuming you thought long and hard before reaching these conclusions?"

  "Yes, of course I did."

  Commander Herdez spoke next. "Captain Hayes, as commanding officer, have you toured every compartment on the USS Michaelson since coming aboard?"

  "Yes, Commander, I have."

  "How many times have you visited Forward Engineering?"

  Hayes frowned in thought. "I'd say two or three times, at least."

  "Then you have visited that compartment at least as many times as Lieutenant Silver, the officer who holds primary responsibility for it?"

  "That seems to be right, Commander."

  "Captain Hayes, have you observed Lieutenant Silver performing other professional duties on your ship?"

  "Yes, I have."

  "Which duties, sir?"

  "Officer of the deck underway, command duty officer in-port."

  "What are your opinions of Lieutenant Silver's performance in those duties?"

  Captain Hayes frowned again. "As officer of the deck underway, Lieutenant Silver displayed passivity."

  "Can you explain that, sir?"

  "Sure. Whenever we had a special evolution, Lieutenant Silver would delegate it to his junior officer of the deck. Whenever he needed detailed information, he'd have to get that information from his junior officer of the deck or another watch stander. And he was habitually late in assuming the watch."

  Paul fought down another grin. I'll be damned. Hayes noticed how Silver was doing his job on the bridge. Just like Carl Meadows said. You don't think he's watching, but he is.

  "And as command duty officer in-port, sir?"

  Hayes shrugged. "Prior to 19 September, on those few days in which Lieutenant Silver stood CDO, I was unaware of any problems. As I already noted, on 19 September he didn't have a handle on the situation."

  Lieutenant Commander Bryko licked his lips before speaking. "Captain Hayes, Lieutenant Silver received a Navy Commendation Medal for his handling of the events of 19 September. Why did he get recommended for that medal if you had such a negative opinion of his performance?"

  Hayes' face reddened slightly and his voice tightened. "I don't know."

  "You didn't recommend or approve the award?"

  "The recommendation for that award did not originate on my ship."

  Bryko looked surprised. "Did you even know Lieutenant Silver had been recommended for that medal, sir?"

  "No, I did not. If I had been aware, I would've done all I could to block it."

  "Can I ask exactly why, sir?"

  "Given what I knew then, I didn't feel Lieutenant Silver's performance rated an award."

  "Thank you, Captain."

  Judge Halstead checked his watch after Captain Hayes had been dismissed. "Does trial counsel have further witnesses?"

  Commander Carr stood. "No, your honor. The prosecution rests."

  "Then this court-martial is closed. It will reconvene at 1000 tomorrow morning in this same court room for the presentation of evidence by the defense."

  Paul stood with the others, stretching muscles he hadn't realized were tense. Commander Carr stood at the trial counsel's table for a moment, both hands resting on the desk top as if she needed the support, then turned to face Paul and smiled. Paul smiled back. "That seemed to go real well."

  "It went okay. Not perfect, but you work with what you've got." Commander Carr stretched as well.

  Paul, sensitized to Carr's appearance by Jen's teasing, tried not to notice the way her body moved. As if I need that distraction on top of everything else. And with a superior officer no less. "Do you think they'll put Silver on the stand tomorrow?"

  Carr finished flexing her back muscles and relaxed. "Ah, now that's a good question. On the one hand, anything Silver says could look bad, like he's making excuses for being such a screw-up at his job. On the other hand, good ol' Scott Silver is a consummate actor and may try to charm the members of the court into submission."

  "You don't think he'll make a sworn statement, do you?"

  Carr snorted. "No chance in hell. The little bastard's guilty, and they know if I get to cross-examine him I'll tear his entrails out and let the members read the proof of his guilt in them."

  "He'd probably take the Fifth -"

  "Yeah, yeah, yeah." Carr paused. "Wasn't there a song like that a long time ago? Anyway, you and I know that taking the Fifth Amendment as grounds for refusal to self-incriminate is not ever, no way, supposed to be used as a presumption of guilt. You and I also know that just about everybody thinks anyone taking the Fifth is guilty, no matter what instructions they get from the judge. Otherwise, why do they refuse to talk? Unfair or not, that's the way it is. As defense counsel, I'd know that minefield was waiting for me and there's no way to sweep it, though if you're really good and really lucky you can navigate through it without getting your butt blown off. As trial counsel, I think that universally-assumed presumption of guilt is great."

  "Why do you think Commander Jones went to all that trouble to get my name introduced into evidence, but then didn't do anything with it?"

  "Obviously, he's planning to do something with it."

  Paul felt the ice in his guts again. "Will I get called as a witness?"

  "No." Alex Carr shook her head for emphasis. "If Lieutenant Commander Jones had any intention of doing that, he'd have moved to have you excluded from the courtroom. No, I think he'll try to attack you indirectly. Undermine our evidence by raising questions about how it was obtained, about whether someone else could've been motivated to set up Silver. He doesn't have to convince the members you actually did the dirty deeds. All Commander Jones has to do is create sufficient doubt in the members' minds that Silver did it."

  "Oh." Paul exhaled heavily. "I hope he doesn't manage that."

  "It's my job to make sure he doesn't, and I'm going to bend every effort to ensure Lieutenant Scott Silver's head is mounted on my trophy wall in the very near future."

  Paul started to laugh at the image, then sobered. "You really do believe he's guilty?"

  "That's also my job, Paul. You can be as ambivalent as you want to be, now. The outcome's in the hands of the judge, the members, Commander Jones and me."

  Paul nodded. Starting a court-martial's a fire-and-forget weapon. Without any recall capability. Set it on
the target, watch it go, and hope like hell the target deserves to get hit. What was that saying? "Cry havoc and let slip the dogs of war." You don't control them once you've set them loose. You just get to watch them do their work. "I'm not ambivalent about his guilt, either, ma'am. I just wish it hadn't come to this."

  "If it all-too-often didn't come to this, I'd be out of a job. Unfortunately, I have the best job security in the world."

  Captain Hayes was waiting for Paul outside the courtroom. Paul felt another knot form in his gut, wondering how long he'd kept his captain waiting, but Hayes just indicated Paul should walk with him as they returned to the Michaelson. "How'd it go in there today? What can you tell me now?"

  "Sir, there's not a lot I can tell you now. Not if you're also a witness."

  "Okay. I understand that. Damned nuisance, but it's worth it to make sure Silver gets his."

  Paul launched into a general recital of the day's events, speaking carefully to ensure he didn't veer into specifics. When he reached Commander Destin's appearance as a witness, Paul felt an even greater reluctance to talk. How am I supposed to critically report on the performance of an officer senior to me? You don't do that. At least, you're not supposed to do that.

  Hayes gave him another look. "That's all you can tell me about Commander Destin's testimony? You pretty much just said she showed up."

  Paul felt sweat starting under his uniform. "Sir, I'd be commenting on the behavior of a senior to another senior."

  "You would, wouldn't you?" Hayes looked forward for a moment, then nodded. "Fair enough. Any idea what the defense is up to?"

  "Commander Carr thinks they'll try to discredit the evidence."

  "That doesn't take a lawyer to figure out."

  "No, sir."

  "Any idea why that guy made me name you?"

  "Not for sure, sir."

  "Keep your guard up."

  The Michaelson's quarterdeck loomed ahead. Captain Hayes boarded the ship, returning the officer of the deck's salute as the petty officer of the watch struck the ship's bell four times in two pairs of bongs then announced over the all-hands circuit, "USS Michaelson, arriving."