Sailor accused of child abuse seeks second Article 32 hearing
February 6, 2004
YOKOSUKA NAVAL BASE, Japan — A sailor accused of breaking his baby’s leg, and already facing court-martial, has asked the court for another hearing to determine whether prosecutors have enough evidence against him to try him.
At an initial hearing of proceedings against Petty Officer 3rd Class Charles Lee on Wednesday at Yokosuka’s Trial Service Office, Lee’s defense lawyer argued that the court, before proceeding with a court-martial, should order a second Article 32 hearing.
Lt. Jason Levy argued that because authorities first had charged Lee with assault last spring, then dismissed the case, then re-filed the charges, it essentially was a new case. Military justice rules provide such defendants the right to demand another Article 32 hearing, Levy argued. Such hearings determine whether there is enough evidence in a case for it to proceed to court-martial.
Lee is charged with two counts of assaulting a child. Prosecutors allege that in Yokosuka, sometime between June and August of 2002, Lee struck his then-6-month-old baby in the chest, and that sometime between August and September of that year Lee broke the baby’s leg.
The case began after the baby was brought to the base hospital; exactly when or for what reason was unavailable. Hospital staff noticed injuries consistent with abuse, and the Naval Criminal Investigative Service began an investigation, according to Jon Nylander, a spokesman for Commander, Naval Forces Japan.
Lee underwent an Article 32 hearing in March and the case was sent for court-martial. But in June, the charges were dismissed after Japanese authorities said they had jurisdiction in the case, Nylander said. Lee’s wife is Japanese, the spokesman said.
Nylander said Japanese authorities decided after some months that they couldn’t find enough evidence to prosecute Lee and returned the case to Navy authorities. Charges again were filed and referred for court-martial in December, without another Article 32 hearing. One wasn’t needed, the prosecutor said, because the evidence and the case remains the same.
But Levy said another Article 32 hearing was required especially because Lee’s defense had gained new evidence that might persuade a second hearing officer to dismiss the charges. The new evidence, Levy said, was a doctor’s report that the sorts of injuries the baby had and how he had gotten them were unclear.
That would refute the testimony of the prosecution’s expert witness, Levy said, a Navy doctor who had concluded from X-rays that the baby had “‘bucket-handle fractures’ absolutely caused by child abuse.”
“Bucket-handle fractures” are those usually caused in babies younger than 2 by shaking or twisting and are highly consistent with child abuse, according to medical experts.
Prosecutor Lt. Matt Osman told presiding judge Capt. Carol Gaasch that although the defense may have evidence from a different doctor than in the first Article 32 hearing, the evidence — the medical opinion — was the same.
Gaasch said she would issue her ruling by Monday. If she decides a new Article 32 hearing is unwarranted, the case is scheduled to go to trial March 16.
Lee was on the Kitty Hawk when legal proceedings began against him but now is assigned to Commander, Fleet Activities Yokosuka. He is not in custody, officials said.
Neither defense nor prosecution lawyers would outline the evidence against Lee.
The maximum penalty for each assault charge is two years in prison and a dishonorable discharge. Other than being precluded from exceeding the maximum, courts-martial have wide discretion in sentencing and may give any sentence deemed appropriate, including no penalty.