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A sailor was acquitted of setting a fire. Is it time for military justice reform?

AILSA CHANG, HOST:

Over the past couple of years, the Navy has lost its most high-profile legal cases, including a recent arson case involving the USS Bonhomme Richard. Advocates say the verdict shows military justice is ripe for reform. From San Diego, reporter Steve Walsh explains.

STEVE WALSH, BYLINE: Flanked by his legal team, Seaman Apprentice Ryan Sawyer Mays recently stood outside a Navy courtroom in San Diego. The judge had just declared him not guilty of setting the 2020 fire that destroyed the $1 billion warship, the USS Bonhomme Richard.

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RYAN SAWYER MAYS: The past two years have been the hardest two years of my entire life as a young man. I've lost friends. I've lost time with family. And my entire Navy career was ruined.

WALSH: Vice Admiral Stephen Koehler had ordered the case go to court-martial even though a hearing officer had already determined that the Navy didn't have enough evidence to convict Mays. One of Mays's former attorneys, Gary Barthel, says giving commanders that discretion has become a problem for military justice.

GARY BARTHEL: They're making their decisions not on leadership principles and not on facts, but based on political fallout that may impact their own career.

WALSH: In the same court room in San Diego in 2019, SEAL Eddie Gallagher was acquitted of war crimes in the killing of a young detainee in Syria, this despite testimony from his own unit and a photo Gallagher texted of him holding the body saying, I got him with my hunting knife. An outside team of defense lawyers poked holes in the Navy's case while President Trump tweeted support for Gallagher. Rachel VanLandingham is a former Air Force attorney. She says military lawyers are qualified, but they lack experience.

RACHEL VANLANDINGHAM: And the entire system, military justice system within the Navy, is simply not experienced enough and not resourced appropriately to be able to handle serious level cases.

WALSH: The overall number of courts-martial has steadily declined among all the services over the last two decades. There were 110 courts-martial in the entire Navy last year. VanLandingham says, that same year, federal prosecutors in the Southern District of California alone charged more than 3,000 felony cases.

VANLANDINGHAM: I fully believe that the Navy needs to have its serious cases, its felony-level cases prosecuted by the Department of Justice and not by the Navy, just because of its inexperience.

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UNIDENTIFIED ACTOR: (As character, shouting) NCIS - hands up.

WALSH: The long-running cop drama "NCIS" and its spinoffs have been on TV for nearly two decades. That makes the production far more seasoned than most agents in the real world NCIS, according to Don Christiansen, a former Air Force prosecutor.

DON CHRISTENSEN: I know they got the TV show, but should we be relying on them when we have the Federal Bureau of Investigation that can investigate these crimes or the local investigators can investigate these crimes?

WALSH: Without the volume of cases, investigators from Navy Criminal Investigative Service cannot get enough experience with major crimes, he says. In the Bonhomme Richard case, an NCIS agent testified that they stopped investigating a second suspect in part because they mistakenly believed they didn't have jurisdiction after he left the Navy.

CHRISTENSEN: They make a lot of mistakes, because a lot of times they don't seize the evidence that they should seize. The reality is 90% to 95% of a case is decided by the investigation.

WALSH: Christiansen is with Protect Our Defenders, which has lobbied Congress to reform military justice, a move driven mainly by how the services have handled sexual assault cases. Next year, sexual assault, along with 10 other major felonies, will be required to go through a special panel that reports directly to the secretary of each service. The reforms don't go far enough for advocates who want a complete overhaul, especially in cases like the massive ship fire. Again, law professor Rachel VanLandingham.

VANLANDINGHAM: These are systemic structural defects that are built into the system. And until those change, I think we're going to continue to see debacles like this one.

WALSH: But traditions, she says, is hard to overcome. For NPR News, I'm Steve Walsh in San Diego. Transcript provided by NPR, Copyright NPR.

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As a military reporter, Steve Walsh delivers stories and features for TV, radio and the web.