Burden of Proof ps-2

by John G. Hemry

  "Objection!" If Commander Carr was simulating outrage, she was doing a very good job of it. "Your Honor, counsel for the defense is once again attempting to introduce speculation into evidence. He has provided not one iota of evidence to back up the question he has just put to the witness."

  "Your Honor — "

  "No." Judge Halstead's glare didn't fade this time. "Save your speculations for closing arguments, counsel. I remind you once again that it is Lieutenant Silver who is on trial here."

  "But Your Honor — "

  "I said no. Objection sustained. Counsel for the defense is directed to avoid similar lines of questioning in the future."

  Commander Carr seated herself, then made a quick thumbs-up gesture under her table where only Paul could see it.

  Commander Jones pondered Captain Shen for a moment longer, then shook his head. "No more questions."

  "Do the members have questions for this witness?"

  "Certainly." Captain Mashiko leaned forward, his elbows on the table and his hands clasped under his chin. "Captain Shen, your reputation is well-known to me. I respect your judgment. Given what you know at this time, would you want Lieutenant Silver to serve under you?"

  Captain Shen frowned, though with apparent thought this time instead of anger. "I would wish to see more of the evidence before rendering final judgment on an officer."

  "Assume what you know is all the information you'll have available. Would you want Lieutenant Silver in your command?"

  Captain Shen glanced toward the defense table, where Lieutenant Silver once again wore his wounded-but-proud-professional face. "No. Not if I had a choice."

  "But he did impress you favorably during your initial investigation."

  "Yes, he did. Lieutenant Silver appears to be very good at impressing his superiors. In light of the factual information I have since learned, I no longer trust that initial impression."

  A rustle ran through the courtroom until it was once again stilled by an angry glare from Judge Halstead. Paul looked at Captain Shen, his own impressions shifting. He did catch on to Silver. And he's admitting it. He's honest enough to do that. Well, he's Jen's father. He can't be all bad.

  "Thank you, Captain Shen. Do any of the other members have questions?"

  Commander Herdez spoke respectfully. "Captain Shen, it appears you no longer stand by the results of your investigation."

  "That's correct, Commander." Another rustle in the courtroom followed.

  "Because of the information which was developed since you formulated those results, sir?"

  "That is also correct."

  Commander Jones came to his feet but spoke calmly. "Commander, if there is to be any attempt to impeach Captain Shen's work on that investigation — "

  Herdez held up one palm. "No, Commander Jones. I have no intention of drawing such a conclusion."

  Captain Mashiko nodded brusquely. "Nor can I imagine anyone attempting to pursue such a course of action against an officer who reached perfectly reasonable conclusions based on all of the information then available to him."

  Commander Jones nodded. "I understand that, sir. But you must understand that Captain Shen is testifying for the record, under oath, and that his testimony could be used against him."

  Captain Shen frowned at Jones, then at Commander Carr. She rose from her seat. "The government has no intention of pursuing any case against Captain Shen. There is no evidence of misconduct on his part."

  Jones smiled tightly. "Thank you, counselor, but as you're aware, your words now are not binding upon the government."

  "Then the government is willing to stipulate as a matter of fact that Captain Shen conducted his investigation in a professional manner with no purposeful or inadvertent misconduct on his part."

  "Thank you. I withdraw my objection to the member's line of questioning subject to that stipulation."

  Commander Carr settled back in her seat, one hand gesturing Paul to lean forward so she could whisper to him. "We didn't need that kind of distraction clouding the case. If line officers think the JAGs are on a witch hunt, they'll circle the wagons around each other in a heartbeat."

  "Yes, ma'am. And we really don't have any evidence of misconduct on Captain Shen's part."

  "Aside from him investigating an officer who's dating his daughter? Never mind. I agree."

  Commander Herdez focused back on Captain Shen. "If you had been aware of the information which has since developed, would you have reached the same conclusions, sir?"

  "No. I cannot imagine doing so."

  "Thank you, Captain Shen."

  Lieutenant Commander Goldberg cleared her throat softly. "Captain Shen, sir, why didn't you use the talents of Chief Warrant Officer Rose in your initial investigation?"

  "I believed I had employed an expert with all the necessary expertise."

  "But that expert wasn't as good as Chief Warrant Officer Rose."

  Small spots of red appeared near Captain Shen's cheeks. "No, he was not. How many times must I state I was wrong?"

  Commander Goldberg looked startled. "My apologies, Captain. My question wasn't meant to — "

  Captain Mashiko shut her off with a wave of his hand. "That's all right, Commander Goldberg. Your question was a reasonable one, as was Captain Shen's response. These are not pleasant issues to address. Does anyone have further questions? That's it then."

  Captain Shen left the courtroom, his posture militarily perfect, his eyes looking straight ahead. Paul watched him go. I'm not looking forward to my next meeting with that man, whenever that may be.

  "Counsel for the defense recalls as his next witness Petty Officer First Class Ivan Sharpe."

  Paul glanced around in surprise, seeing Sharpe marching down the center aisle of the courtroom until he reached the witness stand and was sworn in. What's Jones planning to get out of the Sheriff? Talk about a hostile defense witness.

  Commander Jones stood before Ivan Sharpe. "Petty Officer Sharpe, I've reviewed your service record. It's very impressive. Not a blemish on it."

  Sharpe watched Jones warily. "Thank you, sir."

  "You assisted trial counsel in collecting statements from the crew of the USS Michaelson regarding the accident on 19 September, correct?"

  "Yes, sir."

  "And you earlier assisted Captain Shen in his investigation, once again handling his interactions with the enlisted crew."

  "Yes, sir."

  "In all those interviews, and in every other attempt to generate evidence against Lieutenant Silver, did you ever find anyone who could swear to having heard Lieutenant Silver order Chief Asher to undertake repairs to the power transfer junction in Forward Engineering?"

  Sharpe's eyes shone with frustration but his voice stayed clear and professional. "No, sir."

  "No one? Did you find anyone who could swear to Lieutenant Silver having been the one who damaged the engineering logs?"

  "No, sir."

  "Was Chief Asher a friend of yours, Petty Officer Sharpe? You've previously testified that he often spoke with you."

  "Yes, sir. Chief Asher was a friend of mine. Before he died."

  Paul twisted one corner of his mouth upward. Good one, Sheriff. You made sure nobody forgot that little fact.

  "Then you would have been strongly motivated to fabricate evidence if necessary in order to obtain a conviction?"

  "Objection. Defense counsel's question — "

  "Ma'am?" Sharpe interrupted Commander Carr even as he eyed Commander Jones. "I'd like to answer that question, ma'am."

  Commander Carr made a gesture of acquiescence. "Very well, Petty Officer Sharpe. Objection withdrawn."

  Sharpe held his head high as he answered. "Sir, I have never been motivated or tempted or attempted to fabricate evidence in any case I have ever encountered."

  "Never, Petty Officer Sharpe?"

  "Never, sir."

  "Even if you were convinced of the guilt of the suspect?"

  "Sir, if the suspect's guilty, they'll make
a mistake. I'll find it and I'll nail them. I'm not going to risk sending miscreants to jail and then having them sprung on appeal because I tried to ensure a guilty verdict. That's not the way I work."

  "Then it's both a moral and a practical issue for you?"

  "Yes, sir."

  "You're to be commended, Petty Officer Sharpe. As I'm sure you're aware, on some occasions law enforcement professionals will attempt such measures."

  "Only a few, sir."

  "I won't debate that, Petty Officer Sharpe. Then you can confidently swear that the evidence so far presented against Lieutenant Silver in this court is complete, accurate and truthful to the best of your knowledge?"

  "Yes, sir, I can."

  "Yet, as you previously confirmed, it does not provide any direct and unambiguous proof of Lieutenant Silver's guilt."

  Sharpe paused, his eyes once again wary, then he smiled politely. "Sir, what the evidence proves is up to the members of this court to decide. I just gather it. They decide what it proves."

  Commander Carr clasped her hands together in a subdued gesture of triumph as Paul grinned at Sharpe. Sheriff, I would've fallen into the trap you just avoided, and agreed the evidence didn't prove the charges before I realized what I was doing. One more lesson in law enforcement for me from the master.

  Whatever disappointment Commander Jones felt at having his trap circumvented didn't show. "Thank you, Petty Officer Sharpe. No more questions."

  Commander Carr hesitated and Paul leaned forward to whisper. "Ask him what advice he gave me based on the evidence we had then."

  "Thanks, Paul." Commander Carr stood and smiled at Sharpe. "Petty Officer Sharpe, what recommendation did you make to your ship's collateral duty legal officer based on the evidence available to you prior to your captain's decision to refer Lieutenant Silver to a court-martial?"

  Sharpe smiled briefly back at her. "Ma'am, I recommended we charge Lieutenant Silver with multiple violations of the Uniform Code based upon that evidence."

  "Then you, as a seasoned law-enforcement professional, did believe sufficient evidence existed even then to justify charging Lieutenant Silver."

  "Yes, ma'am, I did."

  "Has anything uncovered since that time caused you to question that recommendation?"

  "No, ma'am."

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

  Judge Halstead looked at Commander Jones. "Redirect, counsel?"

  "No, Your Honor. No further questions."

  "Members?"

  Captain Mashiko gave Sharpe a long, appraising look. "Petty Officer Sharpe, could you work with Lieutenant Silver?"

  "I beg the captain's pardon, sir?"

  "Could you work with Lieutenant Silver? Assume he's exonerated by this court. Assume you end up his subordinate."

  Sharpe didn't bother hiding his reaction to the question, but he replied in an unemotional voice. "Sir, I wouldn't be happy, but I'd do my job."

  "Even though you believe Lieutenant Silver committed multiple violations of the Uniform Code and caused the death of a friend of yours?"

  Sharpe's jaw twitched. "Yes, sir."

  "But you'd keep on looking for evidence against him, wouldn't you? Even if he'd been acquitted."

  "Sir, if new evidence came to light regarding a violation of the Uniform Code of Military Justice, I would bring it to the attention of proper authority. That's also my job, sir."

  Captain Mashiko smiled. "Thank you, Petty Officer Sharpe. No more questions here."

  Judge Halstead excused Sharpe, then nodded to Commander Jones. "Counsel for the defense, call your next witness, please."

  "The defense rests, your honor."

  Commander Carr looked toward the defense table, her expression guarded. Paul followed her gaze, seeing Lieutenant Silver sitting erect, his expression conveying calm confidence.

  Judge Halstead nodded in acknowledgement. "Lieutenant Commander Jones, will Lieutenant Silver be availing himself of pre- or post-Gadsden trial procedure?"

  "Post-Gadsden, your honor."

  "Very well. The court-martial is closed, and will reconvene at 1300 in this courtroom for Lieutenant Silver's statement, followed by closing arguments."

  Everyone came to attention once again as Judge Halstead and the members paraded from the courtroom. After the bailiff called out, "carry on," Paul took a step closer to Commander Carr. "I guess Lieutenant Silver's making a statement."

  Carr glanced disdainfully toward the defense table. "Apparently so. I'll give you twenty-to-one odds it's an unsworn statement."

  "Ma'am, I wouldn't take that bet at two-hundred-to-one odds. Why did the defense call so few witnesses?"

  Commander Carr sighed. "Because he managed to make most of his points about the evidence while cross-examining my witnesses. That couldn't be helped. A circumstantial case has some inherent weaknesses, and Commander Jones is smart enough to exploit them. I hope you'll excuse me now. I need to work on my summation."

  Paul backed hastily away. "Yes, ma'am. I'm sorry, ma'am."

  She smiled again. "Lieutenant Sinclair, I'm not one of your space warfare officers. I don't bite."

  "Captain Shen might have a different opinion about that, ma'am."

  Her smile widened. "I love it when I nail a defense witness that way. Later, Paul."

  "Yes, ma'am."

  Paul came out of the courtroom once again expecting to eat alone, but this time Kris Denaldo and Randy Diego were waiting for him. "Mike Bristol wanted to be here, too, but he figured since he's a witness…"

  Paul nodded. "Yeah. Just as well to avoid any implication of impropriety."

  Kris grinned. "You talk more like a lawyer every day."

  "That's not funny."

  "Have you got time for lunch at Fogarty's?"

  Paul checked the time, then nodded. "Yup. Judges take long lunch breaks."

  "Nice work if you can get it."

  "They also have to work with lawyers every day."

  "Good point."

  They were seated before Randy Diego spoke. "We watched some of the, uh, testimony this morning."

  Paul glanced at him in surprise. "I'm sorry. I didn't notice you'd come in to the courtroom."

  Kris Denaldo laughed. "Maybe because you're tracking the lawyers as if you were a target acquisition system? You're watching everything up there like a Mark 186 on full-spectrum scan."

  "Yeah," Randy Diego agreed. "What was all that stuff? I couldn't figure out what they were doing."

  Paul took a drink. "Basically, the defense was trying to imply I was at least partly at fault."

  "You? They never said your name."

  "They got it yesterday. But my name isn't the issue. The whole point of the defense is to throw up doubt that Scott Silver is solely responsible for what happened, and to point out the limitations of the evidence the prosecution has been able to accumulate."

  Kris nodded. "That Captain Shen looks like a real tough bastard. No wonder Jen's got some hard edges."

  "Yeah. Hey, that's my lady you're talking about."

  "I roomed with her, Mr. Sinclair. Care to stop by and take a look at the dents still in lockers that she punched during fits of frustration?"

  "No, thanks." Paul frowned down at his lunch for a moment. "I've been wondering. Jen's dad is hard as nails, but she comes back at him head-to-head. She doesn't surrender. But Silver… his dad's Vice Admiral Silver. Everything I've heard about him indicates he's as tough as Captain Shen. Maybe even tougher."

  "So?"

  "So maybe this acting stuff and responsibility avoidance is how Scott Silver chose to handle his father while he was growing up. Throwing up a false front to make it look like he was doing what his father wanted. Maybe he never wanted to be in the Navy, but he wouldn't confront his dad on the issue. Instead, he went in and didn't exactly dedicate himself to the job. But he made people with authority over him think he was dedicated."

  "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.