Burden of Proof

by John G. Hemry

  "Like he did with his dad? Maybe that's true. I know some people who went into the service because their parents expected it. But none of them were screw-ups. They maybe wanted out as soon as their service commitment was up, but they didn't play pretend at being officers."

  "You're right."

  "You're not trying to say you're sympathetic to Silver, are you?"

  Paul laughed. "No way. I'm trying to understand him. Why'd he do what he did? That's not the same as feeling he shouldn't get what he deserves."

  Randy Diego swallowed a bite. "Then you're sure Silver's guilty?"

  Paul hesitated just a moment. "Yeah. I'm sure. I just hope the members of the court feel the same way when all's said and done."

  "What's the worst they can do to him?"

  "I think the worst he could get is about ten or fifteen years in prison and dismissal from the service. The suggested punishments for each violation of the Uniform Code aren't hard and fast, though."

  "Dismissal from the service?"

  "Yeah. That's what they call it for an officer. It's like a bad conduct discharge or dishonorable discharge for an enlisted."

  "Wow." Randy Diego contemplated his food for a moment. "Do you think he'll get that?"

  "I hope he will."

  Kris Denaldo cocked one eyebrow. "Wow. Paul Sinclair, thirsting after blood."

  "I don't want revenge, Kris. I want justice."

  "Are you sure you know what justice is?"

  "In this case? As sure I've ever been. But it's the responsibility of the members of the court to do their best in figuring that out, and I don't know what their definition of justice will be."

  Kris nodded slowly. "I don't envy them."

  The crowd of observers in the court room had grown a little larger by the time Paul returned from lunch. A lieutenant occupying the seat Paul had been using glared a challenge at him, then hastily vacated the seat as Commander Carr turned her own displeasure his way.

  Paul waited, trying not to look nervous. The worst is over. I'm not being called as a witness. Depending on how long Scott Silver's statement is, and how long summations by the prosecution and defense run, this could be over in less than a hour. Then it'll just depend on how long the members need to make up their minds on a verdict.

  Two days, and one morning, I guess. That seems like such a short time to decide someone's fate. But then, Chief Asher had only a fraction of a second before his fate was decided. Scott Silver has nothing to complain about.

  Chapter Thirteen

  "The court-martial will come to order." Judge Halstead looked toward the defense table. "Lieutenant Silver still desires to make a statement prior to the final arguments?"

  Commander Jones stood. "He does, Your Honor."

  "Very well. Lieutenant Silver, you have the right to make a statement. Included in your right to present evidence are the rights you have to testify under oath, to make an unsworn statement, or to remain silent. If you testify, you may be cross-examined by the trial counsel or questioned by me and the members. If you decide to make an unsworn statement you may not be cross-examined by trial counsel or questioned by me or the members. You may make an unsworn statement orally or in writing, personally, or through your counsel, or you may use a combination of these ways. If you decide to exercise your right to remain silent, that cannot be held against you in any way. Do you understand your rights?"

  Lieutenant Silver stood as well, his movements crisp and professional, his face as determined as that of a model from a recruiting-poster. "Yes, I understand, Your Honor."

  "Which of these rights do you want to exercise?"

  "To make an unsworn statement, orally, and in person, Your Honor."

  "Then, Lieutenant Silver, take the witness stand and proceed."

  Lieutenant Silver walked steadily to the witness stand. Before sitting down, he looked from the defense table, to the trial counsel table, to the members' table, his gaze clear and confident. He sat, appeared to gather his thoughts, then began speaking. "Members of the court, Your Honor, I wish to offer a firm denial to every charge made against me."

  Silver's jaw jutted slightly as he raised it a bit, his pose now almost heroic. "I admit to some errors in judgment. I was new to my job, new to my ship, in the same sort of situation I know you've found yourselves in many times. I chose to concentrate on learning that ship, learning my professional duties aboard her, before concentrating on my duties as main propulsion assistant. In retrospect, this was a mistake, as it created the false impression that I didn't take my primary duty seriously."

  Paul barely avoided showing his reaction to Silver's words. That incredible slimeball. He wasn't concentrating on any duties, as I knew all too well from having to stand watch with the worthless no-load. But boy does he sound sincere. Paul looked toward the members' table. None of them were showing any reaction to Lieutenant Silver's speech. Don't fall for it. Please don't fall for it.

  "Yes, I fell behind in one area of my work as main propulsion assistant. One area! With so much else to learn, I put off handling official correspondence for a while. I regret that. But that is not a crime, or else every officer who ever fell behind a little in one aspect of their work is also guilty of such an offense."

  "I never heard of the problem with the power transit junction until informed the unit had failed on Friday, 18 September."

  Paul took a quick look toward the members again. Did they notice Silver got the name of the equipment wrong? That's a small but telling error.

  "I was startled and upset. Who wouldn't be? I'd been let down by my leading chief petty officer. It happens sometimes. I knew that. But I hadn't expected it because Chief Asher appeared to be a capable sailor."

  Oh, man, it's a good thing Sheriff Sharpe isn't listening to this. Or any chief from the Michaelson. They'd probably jump the gate and break Silver's jaw.

  "What did I do? I endeavored to solve the problem as quickly as possible. If I'd had to involve my department head and my commanding officer, I would certainly have done so. But by using initiative and acting calmly, I was able to acquire the needed spare in the nick of time." Lieutenant Silver paused, nodding toward everyone in the courtroom. "That's what a good officer is supposed to do. I didn't and don't ask for praise for doing that. I didn't even tell anyone because whoever got credit for fixing that equipment wasn't important. Getting it fixed was what counted. Then I made another mistake."

  Silver drew in a deep breath, his expression now bearing a shade of sorrow. "I entrusted the spare to Chief Asher on Saturday morning. How was I to know he'd try to install it single-handedly? I can understand why the chief didn't want his own lapse to be widely know, but I never guessed he'd take that kind of risk."

  Paul noticed Commander Carr's hands. They were gripping a light metal rod so tightly the fingers were white, and the rod was slowly bending under the pressure. You and me both, Commander Carr. Right now I'm wishing the stuff Silver's accused of carried the death penalty.

  Lieutenant Silver shook his head. "Apparently, Chief Asher chose to do so. Don't ask me how he got multiple authorization codes. I'm certain he didn't have mine. If only the engineering logs hadn't been damaged, they'd prove this."

  "I agree as well that I should have been more forthcoming with Captain Hayes, but the night of 19 September I had no idea of what Chief Asher had attempted. It never occurred to me to link the problem with the power transformer to the explosion and subsequent fire. Once I began to realize what might have happened, it rattled me. I admit that. My concern for Chief Asher caused me to provide an inadequate report to my commanding officer that night. Not deliberately, but out of distress engendered by concern for my personnel."

  "As to the other charges, I took care of my equipment. The equipment losses in Forward Engineering are tragic, but nowhere near as tragic as the loss of Chief Asher. I don't know what drove him to his actions, but I do regret them. To fault me for those actions and their consequences is not only unfair, but would set a dangerous p
recedent for every other officer whose equipment was damaged or lost due to unforeseen events."

  "I did not damage the information in the ship's engineering logs! I don't even possess the necessary software to do that. Did those who searched my stateroom find such software? No. Do they have any evidence I was the one responsible for the damage to those logs? No. Ask them. They know what I say is true."

  "Manslaughter? My God. Is every officer who loses a sailor under tragic circumstances to be charged with causing that death? I did not order Chief Asher to repair that piece of equipment contrary to safety regulations. Ask them about that. Do they have any evidence I did so? Could they produce anyone who heard such an order? No, they could not, because it did not happen."

  "I admit I committed some errors of omission in my statement to Captain Shen's investigation, but this was an error of the heart. I honestly believed any misconduct on Chief Asher's part would cause the Navy to deny his family the benefits they deserved, as well as besmirching the reputation of a man who could no longer defend himself."

  Paul noticed a sharp pain, and looked down to see his hands clenched so tight the nails were digging into his palms.

  Lieutenant Silver looked around the courtroom again, his expression confident once more. "Of course I mentioned this concern to my division. Of course I did. I deeply regret that they so misinterpreted my remarks. But none of them, not one, claims that I ordered them to lie. Because I had nothing to ask them to lie about."

  "I ask that you acquit me of all of these unfair charges. In the name of justice. In the name of honor. In the name of refusing to scapegoat an officer for an accident he could not prevent, and a death which will always shadow his own life. Thank you. Thank you for giving me a chance to defend myself. Thank you for judging me as you would wish to be judged in my place."

  Lieutenant Silver stood and began walking back toward the defense table. Paul heard a small sound and leaned closer to Commander Carr. He could barely make out the words she was muttering under her breath. "Five minutes. Give me five minutes to cross-examine that contemptible weasel. Just five minutes."

  Paul leaned back again, trying to suppress his own anger. But Commander Carr won't get five minutes. Or one minute. Because Silver's unsworn statement can't be subjected to cross-examination, or questioning by the members. No gets to pick apart his self-serving lies and throw them back at him. And the worst part is that everything Silver said sounded so reasonable. Invert the truth, the truth as I believe the evidence proves it, and it sounds perfectly reasonable. It's all Chief Asher's fault. The fault of a man who can no longer defend himself. Chief Asher, I swear, if Lieutenant Silver somehow beats these charges, I'm keep after him until I find charges that will stick. I owe that to you. Silver's not going to walk away from this, no matter how good an actor he is.

  Judge Halstead had also kept his reaction to Lieutenant Silver's statement to himself. Now he looked at Commander Carr. "Is trial counsel prepared for closing argument?"

  "Yes, Your Honor." Commander Carr's voice was as smooth and confident as Lieutenant Silver's had been. She strode to the center of the court, facing the members. "Captain Mashiko, members of the court, you've all heard the evidence. There's no need for me to restate everything. No need to go back over Lieutenant Silver's knowingly false statements to his commanding officer. No need to recite the many errors he deliberately made in his sworn statement to Captain Shen. No need to point out Lieutenant Silver's inexplicable disappearance from his duties as command duty officer during exactly the time period when the engineering logs of the USS Michaelson were damaged. No need to review the quality of Chief Asher's service, which had never been questioned prior to this. Not even any need to point out that in his statement Lieutenant Silver repeatedly failed to correctly name the equipment which needed repair in Forward Engineering. Equipment which was his responsibility as main propulsion assistant, yet he is so unfamiliar with it even now that he cannot identify it properly.

  "No, I want you to consider three facts. The first is that Lieutenant Scott Silver's commanding officer, Captain Hayes, no longer has any confidence in Lieutenant Silver. What does it take to convince a commanding officer that one of his officers is untrustworthy? Such a determination, as you all know, is not made at the drop of a hat.

  "Secondly, Captain Shen, the officer whose investigative report initially cleared Lieutenant Silver of fault, no longer believes his conclusions were correct. He, too, expressed a lack of confidence in Lieutenant Silver. What does it take to independently convince two commanding officers than another officer is untrustworthy? Two officers entrusted with command of warships of the United States Navy, two officers with extensive experience and great responsibilities, and neither of them believes Lieutenant Silver."

  "Thirdly . . ." Commander Carr spun around suddenly, her arm raised and finger pointed at Lieutenant Silver. "When cornered, what did Lieutenant Silver do? Who did he blame for everything that went wrong? A dead man." A ragged edge of fury crept into Commander Carr's voice. "A dead chief petty officer. A professional who had demonstrated years of selfless service to his comrades, to his superiors, to the Navy and to his country. That's who Lieutenant Silver blames. Someone unable to defend himself. Someone no longer able to counter Lieutenant Silver's self-serving and totally false statements. Someone who gave his life in the service of his country. Lieutenant Silver claims he doesn't care who gets the credit, but he doesn't hesitate to attach blame to the dead! And worst of all, Lieutenant Silver didn't even care how his actions and orders endangered Chief Asher, does not even now accept responsibility for his culpable and criminally careless behavior which forced Chief Asher into a the situation which caused his death."

  Commander Carr's voice grew calmer again as she turned her back on Silver and faced the members once more. "I am asking you to find Lieutenant Scott Silver guilty as to all charges and specifications. When someone dons the uniform of an officer of the United States Navy and takes the oath of loyalty to the Constitution, they assume great responsibilities even as they are entrusted with great power over their fellows. Lieutenant Silver manifestly failed in his responsibilities. His commanding officer does not doubt that. The evidence all points in Lieutenant Silver's direction. There is no doubt he lied both to his commanding officer and to Captain Shen. A sailor is dead. A sailor whose life was entrusted to Lieutenant Silver. A warship suffered extensive damage, damage in a compartment full of equipment entrusted to Lieutenant Silver. Is there any reason to believe Lieutenant Silver's accusations against Chief Asher? Is there any reason to doubt the assessment of Lieutenant Silver's commanding officer?

  "Members of the court, I ask you to ensure Lieutenant Silver is never again given the opportunity to bring about the death of a sailor, never again given authority over any other member of the service, never again entrusted with any equipment or ship belonging to the United States Navy. I ask you to find him guilty as to all charges and specifications. Not in the name of revenge, not in the name of vengeance, but in the name of justice. Lieutenant Silver has repeatedly betrayed the trust placed in him by the United States. I ask you not to give him a chance to do so again. Thank you."

  Commander Carr walked deliberately back to her table, while Paul watched her with wide eyes. If that performance doesn't convict Silver, I don't know what will. He looked toward Lieutenant Silver, whose expression seemed less calmly confident now. Sweat, you bastard. You've run into someone who can spin words just as well as you can, and she wants your hide.

  Judge Halstead, still apparently unaffected by the emotions swirling through the courtroom, looked toward the defense table. "Is counsel for the defense prepared to present closing argument?"

  "Yes, your Honor." Commander Jones walked to the same position Commander Carr had taken to address the members of the court. "Lieutenant Silver has already clearly stated the grounds for acquitting him of all charges. Bluntly, there is no evidence directly linking him to most of the offenses with which he is charged. It is
a case built entirely on circumstantial evidence, a house of cards resting on a foundation of speculation and innuendo. How can an officer be charged with giving an order which no one can testify they heard him give? How can an officer be charged with negligence because one of his sailors, acting alone, overrode safety interlocks and attempted a hazardous repair task single-handedly? How can an officer be charged with destroying data in his ship's engineering logs when the only evidence supporting that charge is that Lieutenant Silver was aboard the ship when the destruction allegedly happened? He was aboard the ship on his duty day! This is evidence of wrongdoing?

  "Certainly, Lieutenant Silver was not seen by others for a brief period during the evening of 19 September. As his own department head testified, seeking out a small moment for private grief over the death of one of his sailors is not only understandable, but also appropriate."

  "Yes, Lieutenant Silver admits to having provided incomplete information to his commanding officer on one occasion. Not out of intent to deceive, but out of shock and horror at what had happened. Yes, he tried to protect Chief Asher's reputation and service benefits during the formal investigation. This was perhaps misguided, but it was an error of the heart.

  "Dereliction of duty? Because he failed to open some mail? If Lieutenant Silver's performance was so derelict, why was he not relieved of duty earlier? If Lieutenant Silver couldn't be trusted to carry out his responsibilities, why did he continue to serve in such vitally important positions as officer of the deck underway and command duty officer in port? What commanding officer would risk his or her ship in the hands of an officer they truly did not trust? If they did so, wouldn't they themselves be guilty of dereliction of duty?

  "There was a tragedy on the USS Michaelson. No one denies that. I ask you not to compound that tragedy by convicting an innocent man, a dedicated and caring officer, because a scapegoat is being sought. A conviction on any charge requires proof that Lieutenant Silver did commit such an act, not just an unsupported assertion that he could have done something improper. Such proof was not presented during the course of this trial, because such proof does not exist."