Rule of Evidence ps-3

by John G. Hemry

  Commander Carr visibly winced. "Me and my big mouth. A lawyer should know better than to make promises. Paul, it's not my job to help exonerate Lieutenant Shen."

  "Is it your job to convict someone by ignoring evidence which might prove her innocence?"

  Carr's face reddened and hardened. "I don't like being accused of misconduct."

  Paul dropped his gaze, took a quick breath, then looked back up at her. "My sincere apologies, ma'am. I didn't mean to imply misconduct. I know you wouldn't… I just… dammit, ma'am, I really admire you."

  Her expression softened, though still plainly aggravated. "And you think I'm letting you down. Or letting down Lieutenant Shen."

  "Lieutenant Shen is the most important thing in the world to me, ma'am."

  "Oh, for…" Carr covered her eyes with one hand. "That's a low blow, Mr. Sinclair. Throwing young love at me. It doesn't conquer all, you know." She dropped her hand and gave Paul a rueful look. "But it does conquer my better legal judgment in this case. As far as moral judgment goes, I don't mind telling you I've hated every moment of this case. Sorry, Paul, I've seen it as necessary in light of the evidence. But I haven't enjoyed it. All right. We'll go to the judge and see what we can do."

  "First thing in the morning?" Bashir asked, clearly elated.

  "No. Right now. Stand by while I get back into uniform. We need to get the wheels turning on this, and authorization to crack that site, as soon as possible." They all stood, but Commander Carr leveled a finger at Paul. "Not you, young lover. This is for professionals. Go home. Or to your ship or whatever. And don't breath a word of this to Lieutenant Shen or anybody else. Not a word. If anything gets out prematurely it could cause the judge to rule against this and let Lieutenant Shen stand or fall on what defense she's been able to present thus far. Understand?"

  "Yes, ma'am. Thank you, ma'am."

  "Don't thank me. I'm also doing this for myself. I really don't want to convict an innocent person. Lawyers have souls, too."

  "Or so it is rumored," Bashir murmured.

  "As if you have room to talk. Let's go get Judge McMasters and probably get our ears pinned back. Remember, Sinclair, not a word."

  "Yes, ma'am."

  "And be prepared to find out this site doesn't hold anything that makes a difference. Or it might hold something that hurts Lieutenant Shen, if you missed a word like 'impossible' anywhere in there."

  "Yes, ma'am." But it's not like I have a lot to lose at this point. Bashir gestured Paul out, giving him a confident thumbs-up as Paul left. Now all I have to is wander around until Monday morning, not talking to anybody about this, trying to get some sleep despite everything, trying to not think about it. What was that old Eskimo spell for changing rocks into gold? All you had to do was stare at the rocks for an entire day and never think of walrus.

  In the morning, Paul tried to make it look as if he had indeed slept the night before, but his efforts didn't really convince even himself. I've looked better than this after a night of partying. He started for the courtroom, but almost immediately stopped as his data pad beeped urgently. High priority message. Let's see. Court proceedings postponed for twenty-four hours. Is that good or bad?

  He dialed Lieutenant Bashir's number, but only got the answering machine. The official court number provided no elaboration on the brief message. Court would resume the next day. Assuming it wasn't rescheduled again.

  Frustrated, Paul walked to Bashir's offices, but he was told the lieutenant was unavailable. Same for Commander Carr.

  If only I knew whether this meant good news or bad news. Or just the postponement of the inevitable.

  Judge McMasters looked around the courtroom. "This proceeding will come to order. I wish to apologize first to all concerned for the postponement of these proceedings. Matters came to my attention that had to be dealt with prior to the members of the court rendering a verdict."

  Paul studied the faces of the members, but he saw nothing there but the same uninformed interest most of the rest of the people in the courtroom were displaying. Jen hadn't looked at Paul since she'd been brought in by her guards, sitting perfectly erect in the posture of someone awaiting the impact of bullets from a firing squad. Lieutenant Bashir hadn't looked at Paul, either, concentrating on something on his data pad and ignoring Paul's attempts to get his attention.

  "At the request of both trial counsel and counsel for the defense, discovery in this case was reopened and a warrant issued to access a site believed to contain evidence pertaining to these proceedings which had not previously been disclosed. Lieutenant Bashir?"

  Bashir rose. "Your Honor. The web site in question was accessed in the early morning hours yesterday. Based on initial review of the materiels therein, court proceedings were postponed twenty four hours to allow Commander Carr and myself to study the documents in detail and confirm their authenticity."

  "It's my understanding that the documents were indeed authentic?"

  "Yes, Your Honor."

  Commander Carr, until now silent, rose briefly as well. "Trial counsel agrees that at this point in time the documents appear authentic, Your Honor."

  Lieutenant Bashir walked out from behind the defense table, holding his data pad. "I would like the documents from that site to be entered into the official record of this proceeding."

  McMasters eyed Carr again. "Trial counsel?"

  "Trial counsel has no objection."

  "Then it is so ordered."

  Lieutenant Bashir turned to face toward the members of the court. "If I may, I'd like to ensure the members understand a critical point regarding evidence in a criminal proceeding. All evidence that is 'reasonably available' must be shared with the defendant in order to ensure an effective defense against any charges. That standard is set by the Uniform Code of Military Justice. Failure to provide the defendant with evidence which would serve to rebut criminal charges is a very serious matter."

  McMasters looked from Bashir to Carr. "I assume this means the documents uncovered do indeed pertain to the issues before this proceeding?"

  "Yes, Your Honor," Bashir replied. "They most certainly do. The site contained a number of memorandums, some with attachments, written over the course of the past year by individuals dealing with the office of the Assistant Undersecretary of Defense for Acquisition and Development. All dealt with the status of the Ship's Efficiency Engineering Regulatory Systems, or SEERS. As previously established during this proceeding, SEERS is the new equipment which was installed on the USS Maury prior to her last underway period."

  Bashir raised the data pad, no longer looking at it himself. "All of those memorandums were warnings from personnel involved in the development and testing of SEERS. Warnings that the system had not successfully passed all of its tests. Warnings that, contrary to the information presented during this trial, SEERS itself posed a threat of causing serious damage to a ship. Warnings to those responsible for overseeing the program that it was not ready to be installed on ships such as the Maury."

  He lowered the data pad so he could read from it. "I'd like to quote from one memorandum in particular. Quote. Though designed to compensate for system-wide power fluctuations by dampening feedback cycles, test results show a real possibility that SEERS may enter its own rapid destructive feedback loop. Since SEERS controls all," Bashir stopped speaking and looked around. "I'd like to emphasize that. Quote. Since SEERS controls all safety interlocks in a system in order to regulate power loads effectively, this creates a situation in which SEERS could very rapidly mismanage power loads and with little or no warning cause near simultaneous-." Bashir paused again, and looked around before resuming speaking. "Near simultaneous destructive failure of multiple engineering components. Unquote."

  Paul realized he was smiling like an idiot but couldn't stop. At the member's table, the officers were staring at Bashir with mingled expressions of astonishment and disbelief.

  "Let me cite one other sentence a few lines down," Bashir continued. "Quote. Tests indicate
the only warning that these power fluctuations will soon reach uncontrollable levels is likely to be when remote elements of the system grid begin reporting widely varying power load states at short intervals. Unquote." Bashir gazed at the trial counsel's table. "May I stipulate for the record that the after power coupling on the USS Maury is a remote element in its engineering system?"

  Carr said nothing, but Captain Carney leaned forward. "What would be the basis for stating that?"

  "The engineering systems manual for the Maury, Captain."

  "Oh." Carney sat back again.

  Judge McMasters, his face looking angrier with every word Bashir spoke, nodded. "Let the record show the after power coupling on the USS Maury is a remote element of its engineering system."

  Lieutenant Bashir pointed at Jen, whose own expression could only be described as stunned. "The essential basis for the charges against Lieutenant Shen is that there was no other possible explanation for what happened to the engineering system on the USS Maury. No possible way the system could have accidentally suffered from near-simultaneous catastrophic overloads of its equipment. But that is not true. The documents just now uncovered reveal beyond a shadow of a doubt that SEERS could cause such an accident. And that this was known to some officials in the government via official correspondence warning that SEERS was not ready to install on ships of the United States Navy. Further, in gross violation of the rules of evidence, these documents were not provided to Lieutenant Shen to aid in her defense."

  Bashir turned toward Judge McMasters. "Your Honor, in light of the facts I have just described, the defense moves that all charges against Lieutenant Shen be dismissed."

  The judge's jaw moved back and forth for a few moments before he answered Bashir. McMaster's eyes were angry slits as he nailed Commander Carr with his gaze.

  "Commander Carr. Was the government aware of the existence of these documents prior to this?"

  She stood and faced him, standing at attention. "No, Your Honor." To Paul's surprise, Carr's own voice seemed on the verge of shaking with anger. "They were not revealed to me, to my office, or to the best of my knowledge to my immediate superiors."

  "Are you aware of how serious this transgression is?"

  "I am fully aware of it, Your Honor. I assure you, I intend finding out why this evidence was withheld."

  "Oh, I'll help you with that, Commander." McMaster's face wasn't a pretty sight. "Somebody's going to get nailed for this. If it were not for the high respect which your reputation commands I'd be sanctioning you for contempt right now. But I believe your assertion. Defense counsel has moved that all charges against Lieutenant Shen be dismissed. I want to know what you have to say about that."

  Carr's face reddened. "If I may have a few hours to consult-"

  " Now, Commander. The government has had more than adequate time to compile this case. If trial counsel wishes to register an objection, I want it now."

  Carr looked downward. Paul couldn't read her expression but he could tell her body was rigid. Then Carr slowly raised her head to look back at the judge. "Trial counsel has no objection."

  "Let me be certain what the record reflects, Commander. Is trial counsel agreeing these charges were brought in error?"

  Commander Carr looked directly at Jen. "Your Honor, I did not personally bring these charges, but had trial counsel been aware of these documents, I would have refused to prosecute this case."

  The court room erupted in a whispers and murmurs. The bailiff and Judge McMasters glared around with sufficient menace to quiet the noise almost as soon as it began. The judge raised his gavel. "Then it is the judgment of this court that all charges against Lieutenant Junior Grade Jenevieve Diana Shen are dismissed with prejudice, such judgment to take effect immediately." McMasters pointed a rigid index finger at the masters-at-arms standing at the back of the courtroom. "The court further directs that Lieutenant Junior Grade Shen be released from custody immediately. This proceeding is closed. Trial counsel, I want to see you in my chambers in fifteen minutes."

  McMasters left so quickly the bailiff barely had time to bring the people in the courtroom to their feet. The room erupted into a buzz of conversation, the neat lines of spectators dissolving into small clumps excitedly discussing what had just happened.

  Jen seemed to be in shock, staring at Lieutenant Bashir, who was laughing quietly. Paul pushed forward. "What exactly does this mean? I can't remember what 'dismissed with prejudice' means but it sounds bad."

  "Bad? Hell, no. Not for us." Bashir sobered enough to smile widely at Jen and Paul. "It means the government can't charge Ms. Shen with those offenses again. Ever."

  "But she couldn't be tried twice for the same offense anyway."

  "Uh-uh." Bashir shook his head. "This trial was never finished. Unless a verdict had been rendered, technically Jen wouldn't have been tried before. They could've brought the same charges later. I know that sounds screwy, so just accept that the judge's ruling means Jen is free and clear of this nightmare for this point forward."

  The masters-at-arms who'd escorted Jen into court that morning appeared, looking ill at ease. One bent to remove the ankle restraint on Jen while the other looked into another corner of the courtroom. Jen glared at both until the first had finished removing her bond. "Get away from me," she ground out between clenched teeth.

  Paul remembered what Sharpe had told him. There's things guards can do to prisoners. He stepped forward, commanding the attention of both of the masters-at-arms. "Remember this. They're not always guilty."

  The guards exchanged glances, then the senior one answered without visible emotion. "Yes, sir."

  Jen turned away so she couldn't see the guards. "Get out of here."

  Another exchange of glances, then the guards walked toward the door of the courtroom.

  Jen started to say something else, but her face went pale. Paul turned and saw Commander Carr standing close by, her own expression tightly controlled. Carr took a long breath before speaking. "Lieutenant Shen, I wish to offer my strongest and most sincere apologies for what you went through. I want to assure you that I would never have proceeded with this case had I known vital evidence had been withheld from me and from you. I will find out who was responsible and do everything I can to bring them to account."

  Jen stared back at her, saying nothing.

  "I wouldn't blame you if you refused to accept my apology for what could've been a gross miscarriage of justice. But I do want to ensure you know that duty or not I would not have done this knowingly, and that this man of yours," she pointed at Paul, "deserves every credit for this outcome." Jen nodded. Commander Carr waited a moment longer, watching Jen's unyielding face, then smiled tightly. "For what it's worth, I don't know that I'd accept an apology myself if our situations were reversed."

  Paul watched Jen, trying to will her to respond graciously before Carr turned away. C'mon, Jen. She did the right thing when the chips were down.

  Jen's expression didn't change, but she slowly nodded again. Then she extended her hand. Carr eyed it with surprise, then reached to shake it. However, when Commander Carr's hand was just about to grasp hers, Jen yanked her own up and back, grinning fiercely. "Psych. Ma'am."

  Carr returned the grin and the fierceness. "Want to try again, Ms. Shen?"

  "Sure. If you do." This time the two women shook hands.

  Paul looked from Jen to Commander Carr and mentally shook his head. He could see their hands quivering from the pressure they were exerting. He couldn't tell if they were also digging their nails into each other's hands as they shook, but he wouldn't have been surprised. Man, if you ever locked those two into a room together they'd either kill each other or come out as fast friends.

  The two women broke their grip. Commander Carr took a step back. "Thank you, too, Paul, for uncovering that withheld evidence." Jen's eyes widened and she stared at Paul. "You didn't hear that, yet, Lieutenant Shen? Yes. At almost literally the last minute, your lover here found that site full of
materiel I never saw, and talked your lawyer and I into getting the court to force it open. I'd hang on to him if I was you." Carr inclined her head toward the back of the courtroom. "I have to leave for a command performance with Judge McMasters. Good luck, Ms. Shen."

  Jen massaged her hand as she watched Carr walk away. "She works out."

  Paul nodded. "She's got a chin-up bar installed in her office."

  "I could tell. I need to get one, too." She looked over at Bashir. "Thanks, Lieutenant. Now what?"

  He waved toward the courtroom door, smiling broadly. "You're free. Charges are dropped. You can go anywhere and do anything you damn well please."

  "Does that mean I report back to the Maury?"

  Bashir looked surprised, then nodded. "Well, yes."

  "Just like I've been on temporary duty and am checking back in, huh? 'Hi, guys. I'm back.' 'So, Jen, how was the brig?' 'It sucked.' 'Really?'" Jen shook her head and looked at Paul. "I can't believe I'm already joking about this."

  "It's a coping mechanism."

  "You've been talking to that chaplain, haven't you?" Jen grinned and raised her arms. "I'm free. Damn it feels good. C'mon, Paul, let's take a walk, just you and me and no guards or surveillance systems. Thanks, Lieutenant Bashir."

  "Hey, it's my job." Bashir smiled even wider. "I beat Alex Carr! I've got to tell everybody at the office. Excuse me!" He rushed off.

  Jen took a few tentative steps toward the door, then paused as someone else approached. Lieutenant Kalin's face reflected distress. "Lieutenant Shen, I wanted to apologize."

  "You, too?" Jen managed another smile.

  "I'm sorry? I just mean… we would've voted to convict. I know we would've. There just…" Kalin gestured helplessly. "I would've done the very best I could and I still would've done the wrong thing and I'm so very sorry I came so close to doing that."

  Paul looked at Jen again, but this time she seemed unable to muster a response. "Lieutenant, I'm sure Ms. Shen appreciates that." Jen nodded mutely.

  "Thank you." Lieutenant Kalin looked back to where Captain Carney and the other members of the court were standing and arguing with each other. "I'd better get back."