Burden of Proof ps-2

by John G. Hemry

  Commander Jones was on his feet. "Objection. The witness is being asked to describe a situation whose existence has not been proven. Whether or not Chief Asher was working on the equipment remains speculative."

  Commander Carr spoke directly to Judge Halstead. "Your Honor, the question pertains to standing procedures and system requirements within the engineering department. There is nothing speculative about the nature of those requirements."

  Jones shook his head. "Your Honor, the question only matters if the theoretical situation is assumed to exist. Trial counsel cannot simply assume the existence of that condition but must first prove it."

  "I disagree, Your Honor. Engineering system requirements are matters of fact. If defense counsel prefers, I could simply introduce the engineering department system manuals into evidence in order to establish the same point."

  "Your Honor — "

  Jones' latest point was cut off as Judge Halstead held up one hand in a warning gesture. "I'd appreciate the chance to get a word in edgewise, Counsels. Trial counsel's question clearly pertains to a matter of fact, though any attempt to subsequently link that fact to events must be regarded as theoretical unless further proof is supplied. Objection overruled. The witness is directed to answer the question."

  Commander Destin looked at the judge as if trying to be sure she was the one being addressed, then focused back on Commander Carr. "Yes. The system requires an officer and an enlisted to provide authorization codes."

  Commander Carr eyed Commander Destin a moment longer. "Thank you, Commander. No further questions."

  Lieutenant Commander Jones came forward to stand a little further back from Destin than Carr had, his posture less challenging. "Commander Destin, you've already testified to having a general good impression of Lieutenant Silver's work and attitude. While Lieutenant Silver worked for you, were there any specific negative incidents which caused you to question that assessment?"

  "No."

  "At any time prior to 19 September, were you approached by any personnel who worked for Lieutenant Silver expressing concern over his leadership or the status of the equipment in Forward Engineering?"

  "No."

  "Ma'am, would you expect a chief petty officer to execute a clearly illegal order if you gave him that order?"

  "No, of course not."

  "Have you ever had an individual who worked for you die, Commander?"

  Destin's face worked for a moment. "Yes."

  "After you had carried out all of your immediate responsibilities, Commander, did you find a need to grieve? In private?"

  "I…" Destin's voice seemed to choke off, then she swallowed and tried again. "Yes."

  "Would you regard that need as a plausible explanation for Lieutenant Silver's inability to be found for a brief period on the evening of 19 September?"

  "Yes. Yes, I would."

  "Commander Destin, authorization codes are supposed to be kept confidential. Are any ever disclosed either on purpose or by accident?"

  Destin nodded quickly. "Yes. Yes, they are. Everybody knows that."

  "Then one person could've had access to two authorization codes?"

  "Objection." Commander Carr pointed at Commander Jones. "Counsel for the defense is introducing theoretical situations."

  "Your Honor, this is also a matter of fact."

  "It is not a matter of fact, Your Honor. No evidence has been provided that authorization codes were in fact compromised. If such evidence existed, I would be surprised by any attempt by counsel for the defense to introduce such evidence knowing it would serve to substantiate the charge of dereliction of duty."

  Judge Halstead shook his head, his eyes reflecting annoyance. "These disputes over theoretical issues appear to be a habitual problem. I expect better of professional lawyers. Counsel for the defense, do you in fact have evidence authorization codes were compromised within Lieutenant Silver's division?"

  "No, Your Honor. Not at this time."

  "Then the objection is sustained."

  Commander Jones looked back toward Commander Destin. "No further questions."

  Halstead focused back on Commander Carr. "Do you wish to redirect, counsel?"

  "No, Your Honor."

  Halstead looked toward the members. "Do the members of the court have any questions for the witness?"

  Lieutenant Commander Susan Goldberg spoke up. "I have a question. Commander Destin, you replied to a question about whether or not Chief Asher should be expected to obey an illegal order by saying no. What would you have expected Chief Asher to do, assuming he did receive such an order, ma'am? One requiring him to do something unsafe?"

  Commander Destin remained silent for a moment. "Report the matter."

  "He should jump the chain of command, ma'am? Bypass his division officer and go straight to you?"

  "That's correct."

  "But you also testified you'd always take the word of an officer over that of an enlisted. If Chief Asher came to you and said one thing, and Lieutenant Silver said another, you'd believe Lieutenant Silver."

  Destin's expression started becoming hostile as she stared at Lieutenant Commander Goldberg. "All other things being equal, yes."

  "I repeat, then, what would Chief Asher's alternatives have been, ma'am? Obey an illegal order, or report it to you and be branded a liar by Lieutenant Silver, knowing you would accept Lieutenant Silver's statement?"

  Commander Destin looked around the court room as if seeking an answer. Lieutenant Commander Jones stood slowly. "Your Honor, I wish to object to the member's question. She is asking the witness to speculate about her response to a theoretical situation."

  Judge Halstead tapped one finger on his desk as he thought about the objection. "And here we are again. Lieutenant Commander Goldberg, do you require an answer to your last question from the witness?"

  Goldberg shook her head. "No, sir. I believe the question has already been answered."

  "Trial counsel?"

  Commander Carr gestured toward Goldberg. "Trial counsel defers to the member, Your Honor."

  "Then I will sustain the objection. Again. Do the members have any further questions?"

  Goldberg shook her head again. "I don't, sir."

  Commander Destin received her instructions and left the courtroom, her gloom now lighted by a clear flare of anger.

  Commander Carr called her next witness. "Petty Officer First Class Ivan Sharpe."

  Sharpe strode to the witness stand looking every inch a master-at-arms, took the oath, then waited attentively for the first question from Commander Carr.

  "Petty Officer Sharpe, did you encounter Chief Asher at any time on 19 September of this year?"

  "Yes, ma'am."

  "Describe that encounter, if you please."

  "Ma'am, at approximately 1800 I returned to the ship to drop off a few personal purchases before heading out on liberty for the evening. As I headed back toward the quarterdeck, at about 1830, I passed Chief Petty Officer Asher going the other direction. He wasn't really looking at me, just glaring ahead like he was very upset, and he was talking to himself."

  "What did you hear Chief Asher say?"

  "I heard three words distinctly as Chief Asher came abreast of me, ma'am. They were 'just do it.'"

  "'Just do it'? What was Chief Asher's tone when he said those words?"

  "Angry, ma'am."

  "What did you do?"

  "I said hi, and he didn't react at first, then he looked at me like he was surprised to see me. I said hi again, and asked Chief Asher if he needed anything, if I could help him with anything. He looked at me for a couple of seconds, then shook his head, said 'no,' and headed on down the passageway."

  "You didn't follow him?"

  "No, ma'am. Chief Asher had made it real clear he didn't want to share anything with me."

  "You had no idea why he was upset?"

  "Not then, ma'am, no. Not an exact idea. I do know whenever I hear a fellow enlisted say 'just do it' he or she's repeating
something they've been told by an officer."

  "Objection." Commander Jones pointed at Sharpe. "The witness is speculating about matters beyond his factual knowledge."

  "Sustained." Judge Halstead gave Sharpe a hard look. "The witness is reminded he is to testify to what he saw or heard and is not to speculate as to the meaning of those things."

  "Aye, aye, sir."

  Despite Sharpe's dispassionate reply, Paul could have sworn he caught a glint of satisfaction on his face. You did that on purpose, didn't you, Sheriff? You weren't sure it'd come out in questioning, so you went ahead and said it even though you knew you shouldn't. Well, I'm not going to rat on you.

  Commander Carr tapped her data pad. "I have the text of the investigation done on the accident on the USS Michaelson. It doesn't contain the information you just provided about Chief Asher. Why isn't that information in the investigation?"

  "I don't know, ma'am. I submitted a statement."

  "A sworn statement?"

  "Yes, ma'am. Witnessed by Senior Chief Kowalski of the USS Michaelson."

  "What became of that statement?"

  "I don't know, ma'am. I submitted it."

  "Thank you, Petty Officer Sharpe. No more questions."

  Lieutenant Commander Jones approached Sharpe in an almost wary fashion which somehow made Paul think of a mongoose closing on a cobra. "Petty Officer Sharpe, had you ever seen Chief Asher angry before the evening of 19 September?"

  "Of course, sir. Chief Asher was human."

  "What sort of things made him angry on those earlier occasions?"

  "The usual, sir. Personal problems, problems with enlisted junior to him, problems with equipment, problems with people in other divisions, problems within his duty section, problems with officers." Another low chuckle briefly sounded through the court room.

  "Then Chief Asher could have been angry for any of those same reasons that evening, couldn't he?"

  "No, sir."

  "Why not, Petty Officer Sharpe?"

  "Chief Asher shared problems like that with me. We were friends. Whatever was bothering him that night wasn't the usual stuff, or he'd have told me."

  Jones seemed to have tasted something sour. "No further questions."

  Commander Carr smiled at Judge Halstead, "No redirect, Your Honor."

  Paul wondered why Carr's smile seemed happy as well as polite. She sandbagged Jones, didn't she? She could've had Sharpe tell the court that bit about Asher being unhappy for an unusual reason, but she left it out in hope Jones would ask a predictable question that'd let Sharpe say it. Tough and sneaky. I definitely don't want to cross swords with Commander Alex Carr.

  The next witness was Lieutenant Mike Bristol. Commander Carr questioned him about his knowledge of the spare. Yes, the ship's supply system had been asked about the status of a spare controller for the power transfer junctions. No, none had been available onboard, but some were available from the station supply depot within three or four working days. "Wasn't your ship due to get underway on Monday, Lieutenant Bristol?"

  "Yes, ma'am."

  "Then three or four days wouldn't have cut it, would it? Was there any way to get that spare part over the weekend?"

  "Yes, ma'am. You can ask the station authorities for an emergency parts draw. That needs the ship's commanding officer's approval for the request, and it needs to go to the station's senior duty officer."

  Commander Carr paced back and forth before the witness stand. "Then that spare could've been acquired over the weekend. Officially acquired in time to install it. But to do so Lieutenant Silver would've had to get his commanding officer's approval, and his commanding officer would've had to make an emergency request of the station."

  "Yes, ma'am."

  "In other words, he would have had to inform his superiors of the situation."

  "Yes, ma'am."

  "If the court pleases, I have a copy of a revised report from the physical investigation of Forward Engineering following the accident, and will quote from the revised conclusions: 'Initial investigations had focused on searching for unexplained fragments in the debris that might have represented explosive devices or sabotage, and upon analyzing remnants of equipment for evidence of the cause of the explosion. Based upon information supplied by shipboard personnel, fragmentary evidence from the compartment was reanalyzed and confirmed that pieces of two controller units for the power transfer junction were present.' This report confirms that by Saturday 19 September a spare was onboard the USS Michaelson." Carr tapped her data pad a few times. "Lieutenant Bristol, I have displayed here a picture of the package for a controller spare. Do you recognize it?"

  "Yes, ma'am."

  "Why?"

  "Because I share, I mean I shared a stateroom with Lieutenant Silver. On Friday night, Lieutenant Silver had a package like that under his desk."

  "Friday night the 18th of September?"

  "Yes, ma'am."

  Paul couldn't hide his surprise. I never thought of asking Mike about that. But it makes sense. Where else would Silver have kept the part until Saturday?

  "You didn't comment on it?"

  "No, ma'am. There's not a lot storage space on the ship. If parts get drawn but need to be stowed for a few hours, it's not unusual at all for officers to park the parts in their staterooms."

  "Lieutenant Silver had the part on Friday night. When did you notice the part gone?"

  Mike Bristol twisted the corner of his mouth. "I know it was there when I went to sleep. I'm pretty sure it was there in the morning."

  "Then Lieutenant Silver had it overnight before providing it to Chief Asher."

  "Yes, ma'am."

  "No more questions."

  Lieutenant Commander Jones took up position directly in front of Mike Bristol. "Lieutenant, are you certain the box you saw under Lieutenant Silver's desk was that part?"

  "Yes, sir."

  "You couldn't have been mistaken? It couldn't have been something close to that part's package in appearance?"

  Mike Bristol shook his head. "No, sir. I work with spares a lot, and Commander Sykes, he's my boss, he says I need to be able to look at a box and know what's in it. I pay attention to boxes, sir."

  "You said you were 'pretty sure' the box was there the next morning. You're not certain?"

  "I can't claim to be one hundred percent certain, sir. But I'm ninety percent sure."

  "Is being ninety percent sure you have the part needed to fix something the same as being one hundred percent sure?"

  Mike Bristol flushed slightly. "No, sir."

  "No more questions."

  Then came Lieutenant Fung, the officer from the station supply office. Yes, the part had been drawn late on Friday afternoon. Yes, it had definitely been Lieutenant Silver. "He had this big sob story. I really don't remember why I agreed to let him draw the part. He's really persuasive, I guess."

  Commander Carr nodded. "Then Lieutenant Silver got the part without requesting an emergency parts draw, which would have required his captain's signature?"

  "That's right, ma'am."

  "At what time did Lieutenant Silver receive the spare controller?"

  "According to our database, the part was logged out at 1630."

  "1630? Then Lieutenant Silver had the part as of 1630 on Friday the 18th of September?"

  "That's right, ma'am."

  "Which, as a petty officer from the Michaelson previously testified, is at least half an hour prior to knock-off ship's work. Thank you."

  Lieutenant Commander Jones shook his head. "No questions."

  Judge Halstead consulted his watch. "I'm aware that line officers have a tendency to work through meals, but since this is my courtroom we will break for lunch. The court-martial is closed, and will reconvene at 1300 in this courtroom."

  "All rise!" Paul and the others in the courtroom came to attention as Judge Halstead and the members filed out through their respective doors. "Carry on. Court will reconvene at 1300."

  Commander Carr sank b
ack into her chair, then swiveled in it to look at Paul. "That didn't go too badly."

  Paul nodded. "It sure isn't making Silver look very good."

  "Ah, but we not only have to make him look bad, we have to convince those five officers that he did bad."

  "Did you deliberately set up Lieutenant Commander Jones to ask that question of Petty Officer Sharpe?"

  Carr grinned. "You caught that, huh? You may have the makings of a lawyer, Mr. Sinclair. Yes. It served two purposes. Having Sharpe say Chief Asher was upset over something out of the normal in response to the defense counsel's question gave the answer more force since no one expected it. It also made Commander Jones a bit gun-shy with the next few witnesses, since he's worried about me ambushing him again."

  "How much could Commander Jones have done against Mike Bristol and the other supply Lieutenant? Their testimony was pretty straight-forward."

  Carr's grin turned knowing. "A good lawyer, if that term's not an oxymoron, can make any witness look bad. Exactly what time did it happen? There aren't any other boxes that look exactly like that one? Are you positive Silver is the man who picked up the part? Could it have been Chief Asher? Etc., etc., and so on. Besides, my knowledge of line officers is that they don't place a lot of credence in what supply officers tell them. Right?"

  Paul smiled. "I'm afraid so, but that doesn't apply to Mike Bristol."

  "Great. But those members of the court don't know Bristol personally. Those two supply officers would have been the easiest witnesses for the defense counsel to discredit on the stand in the eyes of the members of the court. But defense counsel held back because he thought I might have laid another mine in his path."

  "It sounds like you're into strategy and tactics as much as line officers are, ma'am."

  "Why not? We're both out for the kill. Metaphorically speaking in my case, of course, since the charges against Silver don't merit the death penalty. I'll see you at 1300."

  Paul left the courtroom trying to decide where to eat lunch, but to his surprise found someone waiting for him. "Jen? How'd you get off your ship?'