Navy Prosecutors Dealt a Setback

A military judge has barred testimony from key witnesses against a sailor charged with stealing silver ingots from the aircraft carrier Kitty Hawk because the government lost tape recordings of statements they made during a preliminary hearing.

Petty Officer 3rd Class Thomas Fairbanks Derrick, 32, was arrested in January, 1984, by Coronado police during a drug raid in which two silver bars were recovered.

Navy investigators traced the silver bars to a batch of 31 plates that vanished from the San Diego-based aircraft carrier Kitty Hawk when the Navy supply system routinely filled bogus requisition orders for the precious metal.

Derrick is charged with larceny, wrongfully selling three silver bars to a San Diego-area pawn shop and “bringing discredit” to the armed services.

The ruling Thursday by Capt. Don Donato prevents Navy prosecutors from calling the five key witnesses who make up the bulk of the case against Derrick, according to Navy sources close to the case. These sources said that without the witnesses the government might have trouble getting a conviction against Derrick.

Navy attorneys participating in the case declined Friday to identify these witnesses or discuss the case.

The ruling does not exclude future prosecution, however, and a source close to the case said the Navy may seek other witnesses.

Derrick, who served as a machinist’s mate aboard the Kitty Hawk, will continue his shore duty at the U.S. Naval Station in San Diego while Navy prosecutors appeal the ruling to the court of military review in Washington. The appeal is expected to take months.

Derrick is one of two suspects arrested in connection with the disappearance of the silver bars valued at about $1,000 apiece.

A search conducted by Navy auditors found that 31 silver bars were ordered between July and September 1983 from computers aboard the Kitty Hawk through a large military supply depot in Mechanicsburg, Pa., said Navy spokesman Cmdr. Tom Jurkowsky.

When supply officers on the Kitty Hawk stumbled upon five of the silver plates in September, 1983, they immediately began asking questions because the unmarked precious ingots are used for electroplating purposes and are not used aboard aircraft carriers.

An investigation was unable to determine who was responsible for ordering the silver bars, Jurkowsky said.

Navy attorneys have said that prosecutors have no idea how Derrick obtained the silver bars.

The Navy has recovered only seven of the 31 bars--two in the drug raid and five found aboard the ship.

Donato said that because “government negligence” resulted in tapes containing the witnesses’ statements being lost, Derrick’s Navy defense attorney was not provided the opportunity to cross examine and test the credibility of the witnesses based on their prior statements.

Lt. Cmdr. John Martens, the independent investigating officer who conducted Derrick’s preliminary inquiry, told the court that he could not remember whether or not he recorded the hearing, according to Cmdr. Charles Pierce, an assistant staff judge advocate.

Martens said he usually includes tapes with case files and since Derrick’s file did not contain any tapes, he thought he did not record the proceeding.

But defense attorney Lt. Susan Chema said in court that she recalled a tape recorder being used during the preliminary hearing, Pierce said.

Pierce said Navy prosecutors considered the ruling “awfully drastic” and suggested that Donato could have ordered a court reporter to go back and gather statements from the witnesses.

But Donato said he was left no alternative because the exact statements of witnesses could never be recovered.

“You can’t go back and do it over again because you don’t know what they said,” Donato said. “They have made prior statements that should be made available to the defense so they can at least determine the credibility of the witnesses.”