Burden of Proof (35 page)

Captain Shen looked toward Judge Halstead, then Commander Jones, who grimaced but shook his head. He focused back upon Commander Carr. "Yes."

"Do you believe your assessment of Lieutenant Silver's actions the night of 19 September would differ if at that time you had available to you the evidence which has since been uncovered?"

"Yes."

"I would like to ask you, sir, as a Navy officer of unquestioned experience, what you would do if you uncovered information which a formal investigation had not been able to discover."

"It would depend upon the information."

"Information such as has been introduced into this court. Information such as we just discussed, Captain Shen. What would you have done? What would you advise another officer to do?"

"Objection. Trial counsel is asking the witness to answer a question regarding a theoretical situation."

Judge Halstead didn't wait for Commander Carr's reply. "Overruled. This is a matter within the witnesses' area of professional expertise."

Captain Shen's expression had shifted. Anger and contempt had been replaced by the intent expression of a combat officer sparring with a capable enemy. "I would tell that officer to bring the information to the attention of proper authority."

"His commanding officer, sir?"

"That's right, Commander Carr. His commanding officer."

"And that commanding officer would make the final decisions as to what action to take regarding this information?"

"Right again. That's the captain's responsibility."

"What would you think of an officer who failed to bring such information to the notice of his commanding officer?"

Captain Shen's eyes finally flicked toward Paul, resting upon him for a fraction of a second before moving back to Commander Carr. "I would believe he had failed in his duty."

"Thank you, Captain Shen. No more questions."

Paul let out a breath he hadn't realized he was holding.
Am I free? Did Carr squash Jones' attempt to make me an issue? She sure turned Captain Shen's testimony around
.

Judge Halstead regarded Lieutenant Commander Jones. "Does defense counsel wish to redirect?"

"Yes, Your Honor. Captain Shen, did you make every attempt to determine the cause of the accident on the USS
Michaelson
and the death of Chief Asher?"

"Of course I did."

"Yet much of the information introduced into court was withheld from you, sir."

"Apparently."

"Captain Shen, suppose an officer had such information during your investigation, but did not reveal it until after your investigation was completed?"

"Objection! Counsel for the defense has introduced no evidence to substantiate innuendo that the evidence regarding the accident was available to anyone prior to the completion of Captain Shen's investigation."

"Your Honor -"

Jones's reply was cut off by a glare from Judge Halstead. "Does counsel for the defense plan to introduce evidence that this information was available to someone else during Captain Shen's investigation?"

"Your Honor, trial counsel has already asked the witness numerous questions regarding theoretical situations. This is simply one more such situation."

Halstead looked unhappy, but finally nodded. "Objection overruled. Continue."

Commander Jones couldn't hide a quick look of triumph. "Captain Shen, do I need to restate the question?"

"No. If someone deliberately withheld such information from my investigation, I would regard it as not only unprofessional but also as grounds for disciplinary action against that person."

"And since we're dealing with theoretical cases, Captain Shen, is there any way of knowing whether such a person had uncovered that information after your investigation and promptly passed it on in a professional manner, or unprofessionally withheld it and only gave it to his commanding officer after the results of the investigation proved unfavorable to him?"

"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."