A military judge dismissed one of several cases involving drugs and a group of USS Vincennes sailors after deciding the Vincennes’ commander might not be sufficiently “neutral and detached” to preside over post-trial proceedings.
Lt. Cmdr John Maksym, Yokosuka’s military judge, then sent the case to Adm. James Kelly, commander of Carrier Strike Group 5, of which the Vincennes is a part. Kelly is to decide whether to proceed again to court-martial or adjudicate the cases in some other way.
“Admiral Kelly has that under consideration,” said Cmdr. John Bernard, spokesman for the Kitty Hawk strike group. “He has not made that decision known to anyone.”
The case of the sailor, whose name was not released, is one of four involving a group of enlisted Vincennes sailors, reportedly including a petty officer first class. All had been charged with either use or distribution of drugs, including marijuana. The quantity or type of drugs other than marijuana, if any, was unavailable.
Whether the three other cases similarly would be referred to Kelly was unknown.
Maksym made the decision Wednesday in a hearing after reviewing e-mails written by Vincennes skipper Cmdr. Mark Englebert. The e-mails, Maksym determined, could present the appearance that Englebert “had had such extensive involvement in the case it would be best sent to a new convening authority,” said Cmdr. Steve Barney, officer in charge of the base Trial Service Office.
“The judge determined that the commanding officer of the Vincennes was not sufficiently neutral and detached in these cases and therefore for the purpose of post-trial review, he believed that the CO could not be neutral and detached,” the prosecutor said.
What the e-mails stated was not disclosed.
Maksym was reviewing the e-mails at the request of defense lawyers to decide whether they were relevant to the sailor’s defense and therefore should be released to the defense. He decided that parts of the e-mails were relevant and released them to defense attorneys.
Englebert could not be reached for comment. But Bernard said the judge’s referral did not reflect any failing on Englebert’s part.
“It is not a reflection on his abilities as a commanding officer. Admiral Kelly has the utmost confidence in how he’s performed as a CO in the strike group,” Bernard said. “It’s just another effort by the judge to make it (the legal process) as objective as possible.”
Commanders walk a fine line when deciding to refer criminal charges. Although they must believe there’s probable cause of guilt, they also are supposed to be detached, impartial — not personally or emotionally involved — in the case. This is in part because the commander also acts as a sort of appellate court, post-trial, where convicted sailors can ask for clemency or for their sentence to be reduced from the military court’s imposed sentence.
“No CO wants to take one of his sailors and charge him with a crime. They’re his crew,” Bernard said. “By the same token, if he’s presented with enough evidence, he has to do so. The challenge he faces of remaining as objective as possible, it’s not a small challenge.”
The Vincennes drug suspects first came to the attention of base prosecutors in July. There were seven; three had their cases disposed of by extra-judicial means, such as separation from the Navy. Four others were to be adjudicated in special courts-martial, in which the heaviest penalty, in addition to a bad conduct discharge, is a year in jail.
