Fitzpatrick – Was RADM Bitoff an accuser?

Walt is and has been quite adamant that RADM Bitoff was an accuser and thus could not have convened the Court Martial. However, that may be based on a flawed understand of the rules and definitions.

In a Letter to Patty Murray, Ma5 5, 1994, RADM H.E. Grant, US Navy Judge Advocate General, explains that RADM Bitoff never took the role of an accuser

Did RADM Bitoff, an accuser, convene a special Court­ martial?

RADM Bitoff convened a special court-martial and referred the charges against LCDR Fitzpatrick to that court on January 24, 1990. He was not, however, an accuser. In military law, the term “accuser” refers to the person who swears to the charges, the person who directs that charges nominally be signed and sworn by another, and any other person who has an interest other than an official interest in the prosecution of the accused (Article 1, UCMJ). While an accuser is disqualified from referring charges to court, no motion to dismiss the charges alleging that RADM Bitoff was an accuser was made at trial. As indicated above, failure to make such motion prior to pleas waives the issue. As a result of his application, and post-application letters from the accused and members of Congress, LeOR Fitzpatrick’s allegations of unlawful command influence have been reviewed by not less than 8 judge advocates, including myself, none of whom were involved in the case at the trial level or have any personal interest in the case. In addition to the fact that the issue is legally moot as having been waived by failing to object at trial, none of these judge advocates have found any legal merit whatsoever in LeDR Fitzpatrick’s allegations. Thus, there is no evidence to support the characterization of RADM Bitoff as an accuser. In fact, there was no evidence of any action on the part of the convening authority, Rear Admiral Bitoff, his chief of staff, Captain Edwards, or his staff judge advocate, LCDR Zeller, which prevented LCDR Fitzpatrick from receiving a fair trial. It is my opinion that had any motion been made attacking RADM Bitoff’s referral of this case to trial, it would properly have been denied.

Walt believes that he found a smoking gun

After 10 years of silence John Bitoff finally came forward to write in April 1999 “I brought the charges and I convened the Court-Martial.”

Source: Letter of RADM Bitoff, Ret, to Norman Dicks, April 30 1999

Referral is the order of a convening authority that charges against an accused be tried by a particular court-martial panel. The convening authority may not refer a charge to a court-martial unless there are reasonable grounds to believe that the accused committed the offense charged, and that the specification of the charge alleges an offense under the UCMJ.
Source: Balancing Order and Justice: The Court Martial Process, American Bar Association, 2012