Bonhomme Richard Prosecution Goes Forward Despite Preliminary Hearing

2/26/2022

Sailor accused of torching USS Bonhomme Richard will go to court-martial, Navy decides

From one Twitter user: "I litigated cases before CAPT Tang, and she is as sharp as they come. The Navy ignoring her recommendation that they not proceed comes as no surprise; the preliminary hearing process is a farce. Big Navy is posturing just like they did with the collision cases."

10 Comments

Nathan Freeburg

2/26/2022 02:23:22 pm

CAPT Tang is very sharp and careful.

Lone Bear

2/26/2022 07:48:46 pm

She’s the best there is, down with convening authorities!

Anon

2/27/2022 07:22:12 am

Does the civilian system ever ask a grand jury on a recommendation of proper disposition? The only states I am familiar with just have a yes/no probable cause decision.

A disposition recommendation from the PHO is helpful, but it isn’t considered binding by law, and shouldn’t be. Who knows if the PHO saw all of the evidence. Who knows if the PHO heard witness testimony in person or if it was all a paper drill. There are so many factors that go into a disposition decision, and the PHO is operating from a limited universe of information.

This doesn’t even get into the normal disagreements that happen among prosecutors on whether a case has enough evidence beyond a reasonable doubt to charge. Line prosecutors are often overruled by their superiors because their superiors have a different perspective. It’s normal.

I am all for making an Article 32 determination on probable cause binding on a convening authority, but it is crazy to make a disposition recommendation binding.

Philip D. Cave link

2/27/2022 11:50:31 am

I agree that the PHO's PC finding should be binding and the disposition recommendation be just that--a recommendation. We all know that more information comes up after the 32.

I proposed a way to get there with an R.C.M. change to the JSC last year on that.

In district court, by law and practice the no-PC is binding. But that doesn't prevent the AUSA coming back later with new or additional evidence and having a do-over. That practice is in the DoJ Justice Manual.

An original concept of the 32 was to avoid prosecution on "baseless charges." Or at least that's how the CMA addressed the 32 in prior cases. To me that's a constitutional issue. While a 32 is no longer a discovery mechanism, I see nothing to suggest that the argument against baseless charges has been revoked, rejected, or anything else. If proceeding on baseless charges is to be meaningless, why bother with a 32 (or preliminary hearing)?

Anon

2/27/2022 02:32:25 pm

I think we only disagree on what the definition of "baseless" is. Baseless pretty clearly means charges which are not supported by probable cause.

Just because the government fails to prove their case beyond a reasonable doubt does not make the charges "baseless".

The real reason that Article 32s have become meaningless is that lawyers are involved so early in the process now. Charges don't get preferred unless a lawyer signs off on it. That means the case almost always has at least probable cause.

Brenner Fissell

2/27/2022 12:17:32 pm

Fire "science" is notorious as junk science. See: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3156796

AnnoyingProle

2/27/2022 07:28:53 pm

While I agree that Tang is as sharp as they come, one dynamic I've seen in CA actions that doesn't seem to be discuss much is this--they often don't mind losing.

That is, CAPT Tang will almost certainly have said PC exists, but unlikely to prove the case at court-martial. And to the Admiral, and those advising him, they likely interpret that (and their case) as "he probably did it, but you'll also probably fail at court-martial."

And in my experience, a good number of CAs don't really feel like the win/lose odds are part of their calculus. They think they're just "letting the process play out" or "making him run the gauntlet".

Now, that's just in the general case. Obviously, here there may also be concerns about the embarrassment of aborting the process mid-stream, the extra concern over the lack of finality and the appearance to Congress, or other high-viz concerns.

But regardless, I think people forget that CAs in a case like this often read *everything*, become convinced the guy is guilty, and then are loathe to simply drop the case because some junior JAG says the hoser prosecutors will probably lose (when more evidence might be turned over).

(to be clear, this is NOT a defense of the CA action or process--I believe Tang knows what the hell she is talking about, and it's a waste of resources and an embarrassment to proceed towards futility--I'm just arguing this isn't always purposeful railroading)

Cloudesley Shovell

2/28/2022 10:00:44 am

I humbly submit that this issue goes beyond the individual convening authority.

Why? The Navy, writ large, loves a scapegoat. The Navy really loves a scapegoat when there is a well-publicized event causing great embarrassment to the Navy and suggesting the the Navy is responsible for the event through some incompetence or oversight. A scapegoat relieves the Navy of some level of responsibility, if not all, avoids painful introspection, and permits the leadership to press on, confident in their infallibility. "See! It's that guy's fault! Not ours!" Sawyer's defense counsel Gary Barthel is on very solid ground accusing the Navy of scapegoating his client.

Two obvious examples of Navy scapegoating behavior of this sort leap to mind. First is the court-martial of Captain Charles McVay for the loss of the USS Indianapolis. Congress eventually ordered the Navy to make an entry into McVay's service record stating he was exonerated for the loss of the Indianapolis, which the Navy did in 2001. The court-martial conviction, however, stands.

Second is the USS Iowa turret explosion, where the Navy's initial investigation conveniently blamed GM2 Clayton Hartwig, who was killed in the turret explosion, for intentionally causing the explosion. Later investigations cast significant doubt upon the Navy's conclusions, but the Navy resolutely refused to admit an accidental explosion, stating only that the cause was ultimately undetermined.

In this case, the Navy, writ large, wins no matter what. "None of this would have happened if this guy hadn't started the fire!" Doesn't matter if he's acquitted. One never unrings the bell. Just ask the family of Clayton Hartwig.

Kind regards,
CS

Tami a/k/a Princess Leia

2/28/2022 07:36:36 pm

CS,

Don't forget the USS Fitzgerald.

Poster

3/1/2022 02:02:58 pm

I don't understand the one-sided stance here.

I talk about the integrity of a judge in a case where MAYBE someone got injured looking for a disgruntled soldier and the political fallout.

It might be that 100 members got cooked on the Bonhomme, but for a sailor being too lazy to commit an act of arson at sea. Or to his own risk. But we're going to mill over the 32?.

I agree that the practice of 32's needs exercising. But I'm also a big fan of commander discretion. That goes for before and after the trial.

F. The Ukraine army can hold off the Russians without all this drama. We look like a bunch of sissies.

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Bonhomme Richard Prosecution Goes Forward Despite Preliminary Hearing

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