CDR. (sic, actually LCDR) FITZPATRICK: They did it against the law. They did it as we’re going to discuss in our next conversation. They rigged the entire court-martial process and they knew from its inception that they had no authority to court-martial me.
Source: Badfiction, quoting the Post and Email
Uh, well, you do realize that the Convening Authority has an enormous amount of leeway under the UCMJ to refer charges to a Court Martial? There was certainly jurisdiction and if there truly had been no authority, then it is surprising that you or your lawyer did not raise this issue. I am sure that quite a few issues you are complaining about now were, or should have been raised during trial and if they were not, you may have lost your opportunity to raise them in a later proceeding. RADM Bitoff was even advised to refer the matter to an Article 32 investigation which would provide Walt with all the tools to defend himself properly. And when the IO recommended Article 15, RADM Bitoff followed the recommendations and extended an Article 15 NJP to Walt. And while he state that he never saw the papers, he also is clear that he would have rejected it anyway, so no harm was done. That Walt failed to take proper notice of the impact of refusing an Article 15, where he would likely have received the same ‘punishment’ as CAPT Nordeen, and would have been able to continue his career in the Navy. Instead he chose the wrong door. We see the same in his attempt to perform a ‘citizen arrest’ of a lawful foreperson of the Grand Jury and other examples where he continues to escalate and then blames others for his predicaments.
Walt again: Let’s talk about the court-martial of Walt Fitzpatrick that took place on the 12th of October of 1989. Four men were there. Tim Zeller was there and had by that point become my accuser. We know that Bitoff was my accuser for reasons we’ve discussed already. Mike Edwards was a witness. Paul Romanski was also one of my accusers. So Zeller, Bitoff, and Romanski were accusers, and there was a witness there. When these men met, that’s called witness-tampering. All these men knew that they had no authority to conduct the court-martial of Walt Fitzpatrick because Captain Edwards had approved the money that I was being accused of misappropriating.”
Source: Badfiction, quoting the Post and Email
First of all, the October 12, 1989 meeting was NOT a court martial but rather a meeting where LT Zeller and CAPT Romanski and CAPT Edwards met with RADM Bitoff to discuss LT Zeller’s findings in the I&E investigation on board of the USS Mars. This investigation was not a proceeding conducted under the UCMJ but rather an administrative, fact-finding investigation ordered by RADM Bitoff’s command. In fact, in order to avoid issues of unfairness, it was decided to refer the issue to an Article 32 hearing.
RADM Bitoff writes in his letter to Norm Dicks:
LT Zeller was adamant that we conduct an Article 32 investigation, if for no other reason than to “cover our six o’dock” with higher authority. I concurred. hoping that it would the clear the air on this issue.
Source: RADM Bittoff, letter to Norm Dicks, Apr 30, 1999
CAPT Romanski, in his chronology mentions that:
RADM Bitoff approves recommendation to refer matter to Article 32 to ensure complete impartiality
Source: CAPT Romanski, Memorandum for the record, Chronology leading up to Article 32, Nov 3, 1989
It is important to understand that the I&E was an administrative, fact-finding investigation, not a proceeding conducted under the UCMJ. The suggestion that this was a Court Martial runs against all known facts. It is true that the investigation did RADM Bitoff to order an Article 32 but that is a far cry from calling the meeting a ‘court martial’. Note that later, LCDR Fitzpatrick was given a Special Court Martial which does not require an Article 32. In fact, the Article 32 recommendation was an Article 15, NJP proceeding.
Walt could argue that the investigation turned RADM Bitoff into an accuser but he would have to distinguish the case from US v Schweitzer, NMCCA 200000755.
We find nothing improper in Gen Pace consulting with his various legal advisors and commenting in his endorsement to the CIB (a strictly administrative investigation) upon criminal charges that might logically flow from this catastrophic mishap. See Conn, 6 M.J. at 354 (convening authority is not acting as an “accuser” when he performs command functions embraced or reasonably anticipated under the UCMJ). It is axiomatic that a convening authority must make certain preliminary “probable cause” determinations before determining whether criminal charges under the UCMJ should be forthcoming in any case, and what their ultimate disposition should be. See Allen, 31 M.J. at 584-85; United States v. Wojciechowski, 19 M.J. 577, 579 (N.M.C.M.R. 1984); R.C.M. 306 and 405(c). Complete and absolute “neutrality” by a convening authority is neither realistic, nor required under the UCMJ. Allen, 31 M.J. at 584-85; Wojciechowski, 19 M.J. at 579. There is no credible evidence to suggest that Gen Pace’s actions, words, or official correspondence “directed” that charges of any nature be specifically preferred against the appellant.
Walt still insists that Bitoff behaved as an accuser and that he and Zeller should have recused themselves because of the incidental role played by CAPT Edwards
Important to remember, Bitoff and Zeller, Group One for that matter, were required by clear regulation to divest themselves of all responsibility in this matter due to the involvement, right or wrong, of their own Chief-of Staff, Captain Edwards.
I’d love to see this ‘clear regulation’ because there are carefully spelled out rules in the UCMJ and MCM and I have yet to find any that clearly outline such a conclusion.
John Bitoffs personal interests here also qualified him as my accuser.
Your claims that Bitoff had ‘personal interests’ needs a bit more than pure speculation. While it is true that a type three accuser cannot be a convening authority,
US v Schweitzer explains:
The test for determining whether a convening authority is a “type three” accuser is whether he is “so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter.” United States v. Dinges, 55 M.J. 308, 312 (C.A.A.F. 2001)(quoting Allen, 31 M.J. at 585); United States v. Voorhees, 50 M.J. 494, 499 (C.A.A.F. 1999)(citing States v. Nix, 40 M.J. 6, 7 (C.M.A. 1994). See R.C.M. 601. Disqualifying personal interests include those matters that would directly affect the convening authority’s ego, family, property, and similar personal interests. Voorhees, 50 M.J. at 499. Also, personal animosity towards an accused, as manifested in “dramatic outbursts of anger” or similar action, may render a convening authority an “accuser” under this concept. Id. We must determine under the unique and particular facts and circumstances of this case whether a reasonable person would impute to General Pace a disqualifying personal feeling or interest in the outcome of this case. Conn, 6 M.J. at 354.
Walt may want to look at the case as it outlines the behavior of General Pace, who was closely involved in the CIB investigation. The appeal’s brief argued that this caused General Pace to become a type three accuser. The Court rejected this. The minimal role played by RADM Bitoff, the fact that he followed the recommendations for an Article 92 investigation, all place significant doubt that he was too personally involved. At every step, the record suggests that RADM Bitoff tried to present the most optimal route for LCDR FItzpatrick, offering him an article 92 hearing, offering him an Article 15 NJP and taking the matter to a Special Court Martial rather than a General Court Martial.
Was RADM Bitoff a type two accuser by ordering that the charges were nominally signed by someone else and sworn to by another? Again the record would lead us into just the opposite direction. And again US v Schweizer is instructive.
Judith A. Miller, General Counsel of the Department of Defense wrote the following to Senator Patty Murray
We have considered the allegations of retaliation and command influence, and find no evidence to support these claims or impropriety against Lieutenant Zeller, Captain Edwards, and Rear Admiral Bitoff. The record provides the following information with regard to the following individuals:
a. LIEUTENANT ZELLER. Lieutenant Zeller preferred the charges against LCDR Fitzpatrick, and was therefore an “accuser”. As an accuser,he was prohibited from providing legal advice to Rear Admiral Bitoffafter the charges were referred to trial by court martial. Lieutenant Zeller did not handle the prosecution ofthe case, but was critical of the judge advocate assigned to prosecute. Rear Admiral Bitofftook no action regarding this criticism. A Navy judge advocate from the San Francisco Naval Legal Service Office provided advice to the Admiral during the post trial review process.
b. REAR ADMIRAL BITOFF. Rear Admiral Bitoffhad no personal interest in the outcome of the proceedings, nor did he at any time improperly direct the outcome of the case.
In conclusion, our review confirms the decisions made by the Chiefof Naval Operations and the Judge Advocate General of the Navy. LCDR Fitzpatrick was treated fairly and not subjected to retaliation or unfair treatment by Navy officials, before or after the trial. LCDR Fitzpatrick’s coun-manial and all subsequent reviews of the record of trial were accomplished in compliance with the Uniform Code of Military Justice.
My question to Walt is: Where these issues raised during the Court Martial?
In conclusion, if these issues were not properly raised during trial, I’d like to understand why not, furthermore I would love to hear more about the legal arguments as to why RADM Bitoff and LT Zeller should have recused themselves. After LT Zeller preferred the charges, he recused himself under Article 34, and Zeller, referred the charges as the convening authority, after Walt had rejected the Article 15 resolution.