{"id":32008,"date":"2018-11-16T22:39:45","date_gmt":"2018-11-16T22:39:45","guid":{"rendered":"https:\/\/one.sightlinemg.com\/navytimes\/uncategorized\/2018\/11\/16\/defense-team-navy-brass-made-it-impossible-for-former-fitzgerald-skipper-to-get-fair-trial\/"},"modified":"2026-08-08T19:27:14","modified_gmt":"2026-08-08T19:27:14","slug":"defense-team-navy-brass-made-it-impossible-for-former-fitzgerald-skipper-to-get-fair-trial","status":"publish","type":"post","link":"https:\/\/one.sightlinemg.com\/navytimes\/news\/your-navy\/2018\/11\/16\/defense-team-navy-brass-made-it-impossible-for-former-fitzgerald-skipper-to-get-fair-trial\/","title":{"rendered":"Defense team: Navy brass made it impossible for former Fitzgerald skipper to get fair trial"},"content":{"rendered":"\n

Attorneys for the former commanding officer of the destroyer Fitzgerald<\/a> want a military judge to toss the court-martial case against Cmdr. Bryce Benson<\/a> because public comments from the Navy\u2019s brass scuttled any chance for a fair trial.<\/p>\n\n\n\n

In a 28-page filing punctuated by broadsides against the Navy\u2019s top leaders, Benson\u2019s defense attorneys take aim at both Chief of Naval Operations<\/a> Adm. John Richardson and Vice Chief of Naval Operations<\/a> Adm. Bill Moran for statements that blamed Benson for the June 17, 2017, disaster that killed seven sailors.<\/p>\n\n\n\n

\u201cCNO and (VCNO), in coordination with other senior Navy leaders, have so frequently blamed Commander Benson for his ship\u2019s collision that no panel could fairly sit at his court-martial,\u201d attorney Lt. Cmdr. Justin Henderson wrote in a motion filed Wednesday.<\/p>\n\n\n\n

When the hulking Philippine-flagged container ship MV ACX Crystal speared into the Fitzgerald off the coast of Japan, it smashed through Benson\u2019s sleeping quarters. Shipmates found him hanging from the destroyer\u2019s side.<\/p>\n\n\n\n

Now assigned to the Navy Yard in Washington, D.C., Benson is being treated at the Walter Reed National Military Medical Center for traumatic brain injury and post-traumatic stress disorder, according to Henderson.<\/p>\n\n\n\n

In the aftermath of the Fitz\u2019s collision, Navy leaders should have kept \u201cclean hands\u201d regarding their public utterances to ensure Benson received a fair trial, one where a jury of officers wouldn\u2019t be influenced by knowing what their bosses thought about the defendant, the filing states.<\/p>\n\n\n\n

\u201cCNO\u2019s hands were anything but sanitary,” and he joined with other Navy leaders to commit unlawful command influence against the ailing skipper, Henderson argued in his motion.<\/p>\n\n\n

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Darrold talks about receiving the news that his son was killed, and the aftermath that followed.<\/figcaption><\/figure>\n\n\n

Dubbed by Navy attorneys the \u201cmortal enemy of military justice,\u201d unlawful command influence \u2014 or UCI \u2014 occurs when superiors utter words or take actions that coerce the outcome of courts-martial, imperil the appeals process or undermine the public\u2019s confidence in the military by appearing to tip the scales of justice.<\/p>\n\n\n\n

Navy officials declined to address Henderson\u2019s contentions specifically this week.<\/p>\n\n\n\n

\u201cThe Navy does not comment on pending litigation,” Navy spokesman Capt. Gregory Hicks said in an email. “Our fair and transparent military justice system allows all accused to advocate in their defense.\u201d<\/p>\n\n\n\n

Another spokesman, Lt. Cmdr. Daniel Day, pushed back on similar assertions by Henderson in May.<\/p>\n\n\n\n

\u201cThose accused are always presumed innocent until proven guilty, and our communication of the status of criminal proceedings have been fact-based and in accordance with service regulations,\u201d Day said at the time.<\/p>\n\n\n\n

The military judge in Benson\u2019s case has yet to rule on the motion. Henderson said the trial is currently scheduled to begin in January, a date that could change.<\/p>\n\n\n\n

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The Arleigh Burke-class guided-missile destroyer Fitzgerald was heavily damaged during a June 17 collision with a merchant vessel.<\/figcaption><\/figure>\n\n\n\n

The motion calling for the case to be dismissed accuses CNO Richardson of \u201cabuse of the military justice process\u201d and contends that he and the Navy\u2019s other top officers should have known their comments would corrode the presumption that Benson was innocent until proven guilty in a court of law.<\/p>\n\n\n\n

It also alleges that Richardson picked one of his staff members \u2014 Adm. Frank Caldwell \u2014 to serve as the Navy\u2019s disciplinary authority in order to give CNO cover, \u201censuring \u2018accountability\u2019 would not rise to senior Navy leadership.\u201d<\/p>\n\n\n\n

Henderson suggests that Benson\u2019s prosecution is a response to public and political pressure on senior Navy leaders, a squeeze that grew tighter after a second warship \u2014 the destroyer John S. McCain \u2014 collided with the Liberian-flagged merchant vessel Alnic MC on Aug. 21, 2017, killing 10 more sailors.<\/p>\n\n\n\n

At first, the Navy announced that Benson could face trial for negligent homicide, but officials dropped that charge earlier this year.<\/p>\n\n\n\n

Instead, he\u2019s charged with dereliction in the performance of duties through negligence resulting in death and improper hazarding of a vessel.<\/p>\n\n\n\n

The filing states that Benson was taken to Admiral\u2019s Mast and received non-judicial punishment, or NJP, for the same charges a few days before the McCain collision on Aug. 21, 2017.<\/p>\n\n\n\n

That punishment was overseen by Vice Adm. Joseph Aucoin, then-commander of the Japan-based 7th Fleet, who was fired shortly after the proceeding.<\/p>\n\n\n\n

The initial probe in the Fitz disaster recommended no further investigation, Richardson signed off on Benson\u2019s NJP and \u201cno reviewing official recommended additional or different punishment,\u201d Henderson wrote in the motion.<\/p>\n\n\n\n

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Although there was a condition attached to Benson\u2019s NJP that permitted officials to reopen his case pending further investigation or endorsement, that never happened, according to the filing.<\/p>\n\n\n\n

\u201cInstead, the only subsequent event was yet another collision in Seventh Fleet, which once again exposed endemic problems in the Navy\u2019s force generation model<\/a>,\u201d Henderson wrote. \u201cBy statute and regulation, CNO is the person responsible for these issues.\u201d<\/p>\n\n\n\n

In May, Navy spokesman Day said any earlier administrative actions \u201care separate and distinct from the ongoing criminal proceedings.\u201d<\/p>\n\n\n\n

But Henderson\u2019s motion pointed to the subsequent McCain collision and a corresponding cascade of comments from Richardson and other top leaders blaming Benson for the Fitz debacle.<\/p>\n\n\n\n

During a January all hands call at the Pentagon, a surface warfare officer asked Richardson \u201chow a mid-level officer could feel comfortable or want to stay in the Navy given leadership\u2019s attitude toward mistakes, as demonstrated by the Fitzgerald and McCain cases.\u201d<\/p>\n\n\n\n

\u201cIf you had seen the evidence that I saw in those cases, trust me, it was negligent,\u201d Richardson replied, according to Henderson\u2019s motion.<\/p>\n\n\n\n

During a Nov. 2, 2017, press conference, Richardson said that \u201cwe found the commander (sic) officers were at fault, the executive officers were at fault.\u201d<\/p>\n\n\n\n

On Jan. 15, three days before Richardson would testify before lawmakers on Capitol Hill, charges were preferred against Benson and five other Fitz and McCain sailors.<\/p>\n\n\n\n

\u201cAfter preferral of court-martial charges, which Congressional oversight committee members applauded, CNO continued to make public statements blaming the ships\u2019 crew and pursued information justifying charges against them while he, VCNO, and (Caldwell) pressed a media campaign that included a thinly-veiled allegation that CDR Benson would not accept responsibility for his ship,\u201d Henderson wrote.<\/p>\n\n\n\n

After his Jan. 18 testimony, Richardson told reporters that \u201cwith respect to the proximate cause of the collisions, there was nothing that was outside the commanding officer and crews\u2019 span of control,\u201d according to the filing.<\/p>\n\n\n\n

To Henderson, those words went too far because CNO and the Navy\u2019s other top officers \u201cknew the limits of a commander\u2019s license to comment on an accused\u2019s guilt” and not one of them \u201ccan claim ignorance.\u201d<\/p>\n\n\n\n

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Secretary of the Navy Richard Spencer, left, and Chief of Naval Operations Adm. John Richardson, right, take their seats for a Senate Armed Services hearing on ‘Recent United States Navy Incidents at Sea’ Tuesday, Sept. 19, 2017, on Capitol Hill in Washington. (AP Photo\/Jacquelyn Martin)<\/figcaption><\/figure>\n\n\n\n

While Richardson was playing up the guilt of Benson and his crew, he was playing down the systemic problems in the 7th Fleet that contributed to both collisions, Henderson argued.<\/p>\n\n\n\n

Henderson pointed to the initial probe into the Fitz calamity by Rear Adm. Brian Fort, which delved more deeply into systemic issues that led to the disaster.<\/p>\n\n\n\n

But a \u201cwoefully misleading\u201d report released by Richardson after the McCain ignored these findings, \u201cpushing blame downward,\u201d Henderson wrote.<\/p>\n\n\n\n

\u201cCNO\u2019s version of the investigation did not mention any of RDML Fort\u2019s findings as to Fitzgerald\u2019s manning, training-and-certification, or maintenance deficiencies,\u201d the motion states. \u201cThe CNO\u2019s version conspicuously omits all institutional errors that saturated the (initial) investigation \u2014 ones that Congress and others rightly laid at the feet of CNO, consistent with his statutory and regulatory obligations.\u201d<\/p>\n\n\n\n

The filing questions why some unclassified portions of a comprehensive review undertaken after the McCain collision were not released to the public, particularly findings touching on the operational demands and leadership priorities for 7th Fleet cruisers and destroyers, aspects that placed blame \u201csquarely at senior Navy leadership.\u201d<\/p>\n\n\n\n

Richardson\u2019s \u201cversion of the collision\u201d released last fall slammed the crews of the ships<\/a> and began what Henderson characterized as a PR blitz by the Navy that hammered this message, according to the filing.<\/p>\n\n\n\t