A military judge has ruled that statements made by the Navy's top two flag officers, about a deadly 2017 destroyer collision, constituted apparent unlawful command influence -- but not enough to merit a dismissal of the case.
The court-martial of Cmdr. Bryce Benson, the USS Fitzgerald's former commanding officer, will go on.
Seven sailors were killed June 17, 2017, when the Fitzgerald and a commercial vessel, the ACX Crystal, collided in the dark of night in busy waters off the coast of Japan. Benson is accused of two counts of dereliction of duty through neglect and improper hazarding of a vessel through negligence. A further charge of negligent homicide has been dropped.
In a ruling shared with Stars and Stripes, the judge, Capt. J.T. Stephens, found that the chief and vice chief of naval operations have stated on multiple occasions that as commanding officer, Benson was responsible for -- or guilty of negligence in -- the collision, and those statements "ignored the accused's presumption of innocence."
But the judge found the statements did not impact a decision by a consolidated disposition authority in January to charge Benson. The judge denied a motion by the defense to dismiss the case, saying "dismissal of the charges is not yet necessary to remove the taint of apparent [unlawful command influence]."
The ruling referred to numerous statements made in the wake of the Fitzgerald collision and a second deadly collision in August 2017 that killed 10 sailors on board the USS John S. McCain, in which Chief of Naval Operations Adm. John Richardson cited negligence and poor judgment and decision-making by the Fitzgerald's commanding officer and other ship officers.
The judge chastised the CNO and VCNO, saying they knew better.
"Specific comments and/or opinions about the accused's guilt or innocence cannot be released when an accused is facing court-martial, especially when those comments are made by the Navy's two top flag officers," Stephens wrote. "CNO and VCNO knew they should not discuss the specifics of the case yet they repeatedly did."
The judge said similar statements continued after Richardson appointed Adm. Frank Caldwell to serve as the consolidated disposition authority to review all nonjudicial punishments to date -- including Benson's --and determine what disciplinary actions should be taken.
In one statement cited in the ruling, Richardson told a press conference Nov. 2, 2017, that "we found the [commanding officers] were at fault, the executive officers were at fault."
Stephens found that the repeated comments were "the result of a coordinated message as opposed to a single slip of the tongue," and noted that they were made before Benson was charged, while Caldwell was considering charges and after Caldwell charged Benson and others in January 2018.
Still, while Stephens found that it is possible that if left unaddressed, the unlawful command influence might have "placed an intolerable strain on the public's perception of the military justice system," he ruled that it did not ultimately influence Caldwell's decision to charge Benson.
He also determined that curative steps should be taken "in an effort to remove the taint of apparent UCI from this court-martial."
The court allowed Benson and his lawyers to conduct extensive voir dire -- jury selection interviews -- to weed out anyone who might have been influenced by the statements.
In addition, the court ordered that an additional question will be asked of all potential jury members to ascertain whether they were at speeches made by Richardson that contained statements about Benson. It gave the defense room to add voir dire questions, and gave the defense two extra preemptive challenges -- bringing the total to three -- to reject potential jurors once challenges for cause are exhausted.
The court-martial, scheduled to begin Jan. 29, has been continued. The parties are targeting a new trial date for May, according to court documents.