Defense counsel for CDR Bryce Benson, the former USS Fitzgerald CO, filed a wide ranging motion to dismiss claiming unlawful command influence at the highest levels of the Navy (Navy Times coverage here). Navy Times reports that the motion asks for dismissal of all charges based on conduct by the CNO, VCNO, Navy JAG (Vice Admiral Crawford), and others:

In a 28-page filing punctuated by broadsides against the Navy’s top leaders, Benson’s defense attorneys take aim at both Chief of Naval Operations Adm. John Richardson and Vice Chief of Naval Operations Adm. Bill Moran for statements that blamed Benson for the June 17, 2017, disaster that killed seven sailors.

“CNO and (VCNO), in coordination with other senior Navy leaders, have so frequently blamed Commander Benson for his ship’s collision that no panel could fairly sit at his court-martial,” attorney Lt. Cmdr. Justin Henderson wrote in a motion filed Wednesday.

More to follow. Anyone that can send us a copy of the motion, please do.

27 Responses to “Former FITZGERALD CO Lays Down an Unlawful Command Influence Broadside in Collision Related Court-Martial”

  1. Barry McCockiner says:

    I’d really like to know more specifics about what made the CO negligent in this situation.  But I will say this, with all the navigational aids on ships these days, not to mention a bridge manned with people who can see outside, it’s hard to imagine how this happened at all.

  2. Charlie Gittins says:

    I have no doubt that Richardson engaged in UCI.  E-mails from a case at Kings Bay a few years ago show that he was trying to influence investigations and BOIs.  I wish I would have kept that stuff so I could give it to DCs.

  3. charlie Gittins says:

    Upon further reflection, if there is an investigative report that implicates CNO in failing to properly train and equip the Navy far east CRU-DES ships as was referenced in this article and before Congress, then isn’t CNO an accuser and anyone junior to him would be disqualified under junior accuser concepts?  In addition to the UCI, does anyone know if counsel also alleged the accuser issue?  Accuser seems like it might be a better case if Congress was questioning Richardson about his responsibility for the state of affairs in the 7th Fleet. 

  4. stewie says:

    I assume they will go full-speed ahead on this one.

  5. Philip D. Cave says:

    Yes, they have raised the accuser issue.
    There are, it seems, three separate motions which are interrelated.
    I wonder if there’s lessons learned from the Bergdahl litigation.  The BergdahlDocket is still online with all of the pleadings.

  6. Kettle Black says:

    Having no knowledge or experience with the Navy, could someone please explain the negligence theory for this case?  I thought CDR Benson was asleep in his cabin (not in a shirking manner) when the collision occurred.  Wouldn’t the people on watch at the time of the incident be the ones with the duty of care?  I get that the commanding officer bears responsibility, in the general sense, for the failings of the crew…and thus would likely be relieved of command.  I think I’m missing where this rises to criminal responsibility.

  7. Charlie Gittins says:

    The Navy has not really figured out the difference between criminal responsibility and command responsibility.  I have done two ship collision cases (USS GREENEVILLE and USS RADFORD) believing that the Navy was interested in a court-martial for the Captain.  In both cases, there was substantial intervening negligence or misconduct by a crew member which likely would have precluded criminal negligence/causation for the Captain.  Once these issues were clearly demonstrated 1) in a court of inquiry and 2) in a presentation to the SURFLANT commander NJP became the forum of choice for the Navy.  I would expect that Richardson will need to learn this lesson the hard way.  

  8. stewie says:

    Captain Picard let the ship’s counselor fly the Enterprise and she crashed it. Twice. You don’t see him being court-martialed.

  9. Michael Lowrey says:

    What Charlie said. And it’s worth mentioning that the Fitzgerald’s OOD at the time of the collision plead guilty at a special court martial (!) to “dereliction in the performance of duties through neglect contributing to the deaths.” Her punishment, per ABC News:

    Under the guilty plea agreement, Coppock was sentenced to receive a letter of reprimand and three months of half-pay. But because she had earlier received a similar non-judicial punishment, the new sentence only added an additional month of half-pay for the junior officer.

    Talk about a complete waste of resources, but apparently someone decided a court martial was necessary despite the earlier NJP.

  10. AnnoyingProle says:

    Now I’m distracted by stewie’s note.  We need to talk to CBS–I think US v. Picard would make an AMAZING Short Trek.

  11. J.M. says:

    Would Riker invoke his Art 31 rights when questioned on his decision to sign off on her bridge officer quals, after she needed multiple attempts to pass the bridge officers test? Or would that fall under some sort of spousal privilege?  

  12. Advocaat says:

    Logic called to ask when CNO’s dereliction of duty court-martial is scheduled.

  13. stewie says:

    Almost every series of Star Trek has had a court-martial in it:
     
    Original Trek had trial of Captain Decker, the original Kirk.
    TNG had the trial to determine if Data was the property of Starfleet or not.
    DS9 had Worf on trial for the destruction of a freighter. (They also had a Cardassian trial where you were guilty until proven innocent).
     
    Now that my nerd creds are fully complete, Picard has let the ship’s psychologist, and the teenage son of the ship’s doctor fly the Enterprise. I’m somewhat surprised Whoopi never got a turn given the subtext that they were an item at some point.

  14. Vulture says:

    Right now Judge Stucky is somewhere reading this blog and ruing the Prime Directive.

  15. J.M. says:

    Art imitates life. The Prime Directive is never to be broken, much like committing UCI. Yet the Prime Directive is constantly broken or ignored, with little consequence.

  16. Fisch says:

    I’m prior Army JAG and enlisted Army, but I spent some time at Little Creek NAB for AIT, so I feel I am highly qualified to comment on Naval Justice matters.
     
    Coppock was the OOD responsible for steering the ship.  According to this article, she was given an order by Benson to contact him any time another ship came within 6,000 yards of the Fitzgerald, which she violated some 13 times:
     

    During questioning from Capt. Charles Purnell, the presiding judge at Tuesday’s special court-martial, Coppock admitted that in violation of Cmdr. Bryce Benson’s order, she had not contacted him whenever a ship sailed within 6,000 yards of the destroyer. That happened 13 times during her four-hour watch the night of the collision, with some ships coming as close as 650 yards of the destroyer.

     
    As a matter of prosecutorial discretion, the junior ranking person who was responsible for steering the ship and who did not contact the Accused in violation of his order received a sentence at Court-martial of a reprimand and forfeiture of a half a month’s pay for three months.  She did have a Federal Conviction.
     
    So, I don’t understand what actions Benson took or failed to take that would be the proximate cause of the collision and deaths of the Sailors. 
     
    If it is a failure to train or properly qualify, then couldn’t any and every death be a Court-martial offense depending on the prosecution’s discretion?  Could Elias prefer charges against Red for negligent dereliction of duty resulting in Gardner’s death because he should have spent a few more days in Country before going out on a patrol?  This seems like an awfully slippery slope for juice that isn’t worth the squeeze in the circumstances in this tragedy.
     
    We had three Courts-martial with co-accused in response to a training death at Ft. Benning back in ’05 after a WLC candidate had a heart attack after a run.  Sounds like a lot of the same political issues.  CA was sick of training deaths.  SJA said, “Let’s have a Court-martial!”  Mother was outraged over her son’s death.  The guy that pencil whipped the candidates’ run on his PT card at his parent unit, so he could attend the WLC, got an Article 15. Three cases went forward: 1st full acquittal; 2d (mine and I had the most culpable) convicted of negligent dereliction of duty sentenced to a reprimand and $1,000 per month forfeiture x 3 months; and 3d, plea of guilty to NDOD with a minimal punishment limitation. 
     
    These cases often result in minimal punishment that does little to assuage grieving parents.  And, if Coppock only got a reprimand and forfeitures for 3 months, then why push for a less culpable Officer to go to a GCM?
     
    Under this standard, how many defense attorneys have witnessed SVPs and TCs who were derelict in their duty in ruining an innocent man’s career based on specious charges?

  17. Charlie Gittins says:

    Fisch:  SHACK!  Bulls-eye.  OOD failed to comply with Standing Orders — 13 times.  One resulted in collision.  Unless he is charged with negligent training and knowledge of prior deficient performance of the OOD in hazarding the vessel, the CO walks, judge alone.  Of course that will be after the fun of the UCI and Accuser litigation.  SO much wheel spinning for so little return.  That’s the Navy way!

  18. retired says:

    Even with difference between criminal culpability and command responsibility – IMHO, it is unlikely CO will ‘walk’ with dereliction and hazarding a vessel on the charge sheet (unless ‘walk’ refers exclusively to negligent manslaughter).  Negligent manslaughter was probably charged to encourage a plea (even at a lesser forum) and for PA/messaging.  Concur training and culpability discussion would be interesting if charge remains and is contested.

  19. Anonymous says:

    As someone who went to a GCM on a bogus 120 charge only to be found guilty of 93 and 92, didn’t receive confinement or a punitive discharge, and currently holds a TS security clearance, has worked for the richest company in the world in the real world no one cares about “Federal Convictions” for military only offenses. I think JAG’s need to stop spreading wive’s tails about that. They care if you’re going to confinement, were kicked out of the military, and what you found guilty of…if one’s potential employer even cares about that.

  20. TC says:

    Yeah, despite that overwhelming anecdotal evidence, I’m still going to advise clients that a court-martial conviction and a security clearance don’t typically go hand in hand. 

  21. Anonymous says:

    If my evidence is anecdotal, then I’m proof yours is too. How about sticking with the fact that “it depends” based on what the charges the accuses was found guilty of and whomever the adjudicating authority find not worthy, or worth, of a security clearance? Because that’s the truth.
    “What were you found guilty of?”
    “I was found guilty of consensually having sex with a girl five years ago who falsely accused me of sexual assault after lying on a statement saying we never even had sex. Reference what happened to Justice Kavannaugh with false accusations ruining men’s lives over false accusations. That’s pretty much been the status quo in the military since 2012 due to Congressional pressure on Commanders. ”
    “Holy shit! I’m so sorry about that, you’re hired.”
    My buddy currently flies for FedEx, with a dismissal, and makes a ton more money than he did as an O-5 with flight pay and allowances. He also has a security clearance since FedEx has a government contract for airlift and logistical support. Yeah, false accusations of sexual assault only to be acquitted of that and thrown out at 19 years for writing a cheesy love note to an E-4 and being found guilty of conduct unbecoming.
    There’s a Georgetown law professor who’s a convicted federal felon, spent years in prison, actually wrote a writ of certiorari to the SCOTUS as a prisoner, laughed at by attorneys for doing so, then had a fellow prisoner’s case heard by the SCOTUS due to a Sixth Amendment violation, which they agreed in a 9-0 opinion, reducing his sentence four years. He went to law school after he got out of prison.
    So, going back to my original statement. Just say “it depends”, because it does. When I was getting out after 16 years I heard all sorts of JAG’s, with the legal prowess of Paul Manafort, tell me how I was going to lose my VA benefits because I was getting a General discharge, how I wouldn’t qualify for VA disability, education benefits, etc. The VA just paid for the remainder of my undergrad and my graduate degree from an Ivy League school, all while collecting VA disability.

  22. LT Weinberg says:

    “Spreading wives’ tails” is an absolutely beautiful dogberryism. 10/10.

  23. Robert Lyons says:

    Just connecting the with other current issues, from a non-lawyer but avid reader:  If criminal negligence can attach to a Private who fails to “card” a fellow Private at a Barracks Party, then just about any other failure or unfortunate incident  requires a Court Martial.  So if  Private  Snuffy is killed in a DWI, are we going to Court Martial the Company Commander, or maybe the Brigade Commander for being derelict because leadership did not conduct the standard “safety briefing” that weekend?  Scary.  Does not most criminal conduct require a mens rea?

  24. TC says:

    “I was convicted of having sex with a subordinate and failing to follow orders.”
    ”holy shit, I’m sorry about that, you’re hired.”
    The richest company in the world needs to reevaluate who does their hiring.

  25. Anonymous says:

    You should probably go back to JAG school for a refresher. She wasn’t a subordinate and the Air Force Instruction at the time stated that a direct supervisor relationship was a no-go. The rest of the AFI was silent on unprofessional relationships between Enlisted unless it created favoritism. Which would explain why I wasn’t charged with failure to follow a lawful order or general order and was charged with dereliction of duty.
    You’re right, I probably should’ve just went to law school/JAG School to learn how to give poor legal advice with questionable ethics and never be held accountable for my actions or inactions that affect other people’s lives. If I did it as I’m retirement eligible then I’d just be “force” to collect a pension for the rest of my life. Oh wait, there’s that who “different spanks for different ranks” thing that always trip up Enlisted personnel.

  26. Robert Lyons says:

    Although the responses are drifting off-topic, I have always believed, and conducted my professional careers (enlisted, Officer, and professional clergy), that any personal relationship outside marriage creates the potential of compromise. Even if one is entirely above board and honorable, human failiity, being what it is, cannot prevent an unfortunate result. Since I can never control another person’s perceptions or even false accusations,  I do not place myself in positions where I cannot control.  Thus, I have little to fear. The implications of the topic at hand are more important that antectdotal histories. 

  27. stewie says:

    How to get this back onto a random Star Trek focus…thinks…nah, this schtuff has gone off the rails too far.