How the Navy’s Top Commander Botched the Highest-Profile Investigation in Years (excerpt)
(Source: ProPublica; posted April 11, 2019)

by T. Christian Miller and Robert Faturechi
On Wednesday, the Navy said it was abandoning all remaining criminal charges against sailors involved in fatal accidents in the Pacific. Here’s how the actions of the chief of naval operations helped doom the cases.

WASHINGTON --- Lt. Cmdr. Jennifer Pollio could not believe what she was hearing from the Navy’s top officer.

It was Jan. 25, 2018, and Adm. John Richardson, chief of naval operations, was addressing an auditorium filled with Navy attorneys. One officer asked a question that touched on a sensitive topic: two collisions of warships in the Pacific in the summer of 2017 that left 17 sailors dead in the Navy’s worst maritime accidents in decades.

The Navy had recently announced that it would criminally prosecute the captains of the vessels and several crew members for negligence leading to the fatal accidents. The questioner wanted to know whether officers now had to worry about being charged with a crime for making what could be regarded as a mistake.

Richardson answered by saying that he could not discuss pending cases. As a bedrock principle of military law, commanders cannot signal a preferred outcome. But then, almost as an afterthought, he attempted to reassure the man that the collisions were no accidents.

“I have seen the entire investigation. Trust me, if you had seen what I have seen, it was negligent,” Richardson told the audience, according to court records.

Pollio, a Navy attorney, was alarmed. It appeared to her that Richardson had effectively pronounced guilt before trial. And he had done so in public, in front of an audience whose members could conceivably participate in the military’s judicial proceedings.

“I was shocked that he would say that,” Pollio would later recall in court testimony.

Commanders are central to military justice. In most cases, they select jurors, approve plea deals and have a say in the outcomes. The prosecutors, defense lawyers and judges are often all service members. They are charged with being independent, but some, inevitably, are conscious of their careers and the desires of higher-ups.

It is a system rife with the potential for bias. That’s why commanders are forbidden from even giving the appearance of trying to sway results. Unlawful command influence has been called the “mortal enemy of military justice” because it undermines faith in the system’s fairness — not just among members of the military, but the general public, too.

Yet the January meeting was neither the first time, nor the last, that Richardson would be accused of attempting to influence the results of the inquiry into the collisions of the USS Fitzgerald

and USS John S. McCain.

That fall, Richardson had told reporters at a press conference that the ships’ officers were “at fault” because of their negligence. On another occasion, he told reporters that “there was nothing that was outside the commanding officer and the crews’ span of control” before the collisions. In testimony before Congress, he again held the captains of the ships culpable, saying they “had complete ownership” of the causes of the collisions.

Richardson made investigating the accidents involving the Fitzgerald and the McCain a primary focus of his command of the Navy. He ordered multiple, in-depth examinations of the incidents. He promulgated reforms designed to put more sailors on ships based overseas and increase training in basic navigation skills.

But his pursuit of accountability for individual sailors has been deeply troubled, and the prosecutions of the men and women on the two destroyers are today in shambles. Indeed, Richardson, who holds the most senior uniformed position in the Navy, was found by a judge to have violated the protections against undue command influence, a stunning result in one of the most high-profile cases of military justice in years.

A ProPublica examination of the cases based on confidential Navy documents, emails among top officials, court records and interviews shows that the criminal prosecutions of the accidents involving the Fitzgerald and the McCain were marred by questionable decisions and egregious mistakes.

Late Wednesday, after ProPublica informed the Navy of its findings, the Navy told families of the fallen sailors that Richardson will announce that he is dismissing the cases against the captain of the Fitzgerald and a junior officer. Instead, both will receive letters of censure from Richard Spencer, the secretary of the Navy, a public finding of wrongdoing.

“The cases are being dismissed for legal reasons that impeded the continued prosecution of either officer,” read the message, which was obtained by ProPublica. “Your loved ones did not die in vain; their legacy lives in the form of a stronger and more capable Navy.”

A Navy spokesman confirmed the planned actions late Wednesday.

“This decision is in the best interest of the Navy, the families of the Fitzgerald sailors, and the procedural rights of the accused officers,” read a statement.

The unraveling of the cases against the sailors began soon after the collisions. Richardson’s subordinates, two three-star admirals, handed out an initial round of punishments to sailors and officers on the two destroyers — but decided against pursuing criminal charges. They found the wrongdoing not serious enough to recommend a court-martial.

Concerned about the outcomes, and under fire from Congress, Richardson ordered a second review of the evidence that resulted in criminal charges against six officers and enlisted crew members on the Fitzgerald and McCain. The array of charges included negligent homicide against the two captains and junior officers, accusations that could have led to three years in prison and dishonorable discharges.

The review was overseen by a four-star admiral on Richardson’s staff with no known experience in conducting courts-martial, as military trials are known. In yet another surprising development, a judge eventually ruled that the admiral had worked with prosecutors to develop evidence against the captain of the Fitzgerald, instead of acting as a neutral arbiter. The judge ultimately disqualified the admiral, throwing the case into legal limbo.

Richardson’s No. 2, Adm. Bill Moran, was also found to have engaged in “apparent” unlawful command influence. The judge said the public remarks on the case made by Richardson and Moran were no slips of the tongue but part of a “coordinated message” that risked tainting some of the criminal cases.

Richardson and Moran “knew they should not discuss the specifics of this case, yet they repeatedly did,” the judge wrote.

At every stage, Navy prosecutors failed to convince judges and jurors of the legitimacy of their allegations. The charges of negligent homicide were dropped. Criminal charges against another officer were dismissed. And at least four separate military panels have ruled in favor of sailors that the Navy sought to expel from the service.

Richardson and Moran, who was nominated Wednesday as the next chief of naval operations, declined to comment, citing the pending cases. The Navy declined to make any official available for an on-the-record interview, but it provided a legal expert to provide comment anonymously.

The legal expert, a senior officer in the Navy’s Judge Advocate General’s Corps, defended the outcomes of the investigations — with some cases dismissed and others resulting in guilty pleas — arguing that they showed that the Navy was dedicated to fairness and due process.

“Courts-martial in general are hard. They are hard and complicated,” the senior officer said. “Mistakes are made in every case.”

To the lawyers defending the accused sailors, the botched prosecutions by the Navy amounted to a tragedy on top of a tragedy. People’s lives were upended, careers destroyed, families twice traumatized, they have argued, because Richardson decided to send a message rather than pursue an impartial and fair trial. Richardson, they have asserted, targeted these individuals to distract from larger, more systemic failings, failings that had plagued the Navy’s vaunted 7th Fleet for years, and that were exposed for the world to see in two of the deadliest Navy accidents in years.

ProPublica has previously documented the Navy leaders’ disregard of years of warnings of impending disaster in the 7th Fleet.

In a statement on Richardson’s decision to drop charges, the legal team defending the captain of the Fitzgerald, Bryce Benson, said he had been deprived the opportunity of a fair trial.

“The announcement of this disposition completes a process that never included a trial of the facts,” said Cmdr. Justin Henderson, a Navy judge advocate on Benson’s team. “Despite a relentless messaging campaign insisting ships’ commanding officers are strictly liable for all operational risks, the Navy never tested that concept in court. For good reason: It’s untenable, legally and factually.”

David Sheldon, a private defense attorney representing Lt. Natalie Combs, the junior officer whose charges were dropped, said the Navy needed to address its own shortfalls in sailors and training instead of targeting crew members.

“The charges in this case should never have been brought,” Sheldon said. “It is an affront to justice to suggest otherwise.” (end of excerpt)

Click here for the full story, on the ProPublica website.


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