Shouldn’t Areel Shaw have been disqualified?
- Thread starter FredH
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Maybe she requested the assignment, reasoning that despite the fact that "I am the prosecution, and I have to do my very best to have you slapped down hard. Broken out of the service, in disgrace" she could be fairer to him than someone with a vendetta would be.
In the "real" world, yes, she would have been excluded.
Sir Rhosis
Sir Rhosis
^^^Yep! Poor Hamilton Burger would agree. 
There were no hard feelings between him and Perry at the end of the day.
^^^Well, he did win every case other than against Perry. 
I sure hope not.
Short answer is: for drama, because that's what Trek is
Long answer: it would depend on regulation and available personnel. Kirk may have to file an
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Or even an injunction!
Injunction injection objection!
I looked into this years ago when I researched my novel The Buried Age, with regard to the analogous situation of Philippa Louvois prosecuting Picard in the Stargazer court-martial. In a civilian court, yes, prosecuting one's lover would be a conflict of interest and require recusal. But in a military court, there is no such provision. If you're ordered to prosecute someone close to you, then you have to obey that order to the best of your ability. You can request to be recused, but if your superior orders you to do it anyway, then refusal to obey is dereliction of duty. (Riker being ordered to argue the case against Data in "The Measure of a Man" is an excellent example of this principle.)
Keep in mind that this was a starbase, an outpost on the frontier well away from civilization. Modern Trek shows tend to assume that any starship can get anywhere in a matter of hours or days at most, but the assumption in TOS was that its starships and starbases were on the remote frontier, weeks or months away from civilization. So a court martial held on a starbase would have to be held with whatever officers were available at the time. (That's probably why "Court Martial" had that early scene establishing that multiple other starships were in port for maintenance or repairs -- they were the source of the officers who constituted the jury panel.) If Shaw was the only JAG officer on the base, she would've had to be the prosecutor.
The person who should have recused themself in "Court Martial" was Commodore Stone. In US Naval law, at least, the person who brings the charges against an officer is not allowed to preside over the court-martial. Although maybe the frontier setting and the lack of other flag officers accounts for that as well.
Roddenberry once compared Kirk to Horatio Hornblower, and there are definitely elements of late 18th, early 19th Century Royal Navy procedures and realities all over TOS. In my mind, "Court Martial" is one of the places this shows the strongest.
If this was 1798 Jamaica, Commodore Stone (who becomes Admiral Stone because a Commodore wasn't a rank in the RN (before 1997), it was a posting), as the senior Flag Officer present, and thus the senior representative of the King, would be required to preside over the trial. There's no conflict of interest, because the King is expected to be able to both say "I think that was a bad thing, we need a trial" and also say "I've listened to both sides fairly." Also, the President of the Court Martial was only one vote in a board of 3 to 7 Captains or higher, who needed to be unanimous in their decision, so it was less of an issue than it might be in a single-judge situation.
There was also much less reliance on technical details and professional knowledge, as everyone involved was a part-time lawyer at best. I think the episode also reflects this quite well. This means you don't have to worry so much about a biased judge manipulating the process one way or the other.
If we assume that Star Fleet is making similar concessions to reality, Stone's dual role doesn't become much of a problem. (One could also argue that, perhaps only on paper, Stone isn't actually bringing the charges, Shaw is, and Stone is just the one telling Kirk about it.)
As for Shaw - well, obviously in 1798 the prosecuting officer wouldn't have been a lawyer but rather another Post Captain; also obviously the Shaw character would have also been a man, and in this context Kirk and Shaw are unlikely to have been former lovers (and if they were, it would've been kept secret, since this was punishable by death). Still, they probably would've known each other - there aren't that many Post Captains - and could well have had strong opinions about the other, either positive or negative. So from a political viewpoint, it might not have been the best choice. But also hard to avoid - most if not all Post Captains are going to have opinions about any other Post Captain. Moreover, if one was in a situation where you only had three other Post Captains (besides Kirk) available, plus Admiral Stone, Shaw is going to be part of the Court in some role, and it's arguably less problematic to have the highly biased officer serving as the prosecutor than as a judge.
Finally, one must always acknowledge that often times in a situation like this, there's an outcome that everyone is just looking for an excuse to reach. The episode doesn't really reflect this since Shaw is shown to be a professional and doing a very creditable job of prosecuting Kirk, but there's certainly room to allow for Stone to be thinking "I really want Kirk to beat this, if I can find any half-way good reason to find in his favour I will, so let's appoint someone who likes him as the prosecutor as she probably won't come out so hardcore."
In 18th Century naval fiction that last element would've been overt in the story. In 1967, a male superior making that assumption about a female subordinate wouldn't have been out of place. While it's not overt in the episode as aired, it's possible that the audience would also have made that assumption, or that it was part of the underlying thinking in the drafting stage.
I doubt it. The last thing you want to do in plotting a story is to make things less risky for your heroes. The writers would've wanted to put Kirk in as much peril as possible. Making his ex-girlfriend the prosecutor was a way to add emotional peril and angst, not to diminish the risk of conviction.
After all, Stone and Shaw assumed the video evidence was irrefutable (since the idea of video evidence being falsified by a computer was far more of a novelty in 1967 than it is today). They believed Kirk was guilty, so they wouldn't have been trying to make it easy on him. If anything, Shaw would've presumably felt disappointed and betrayed that a man she'd once loved was capable of such a thing, and would've been motivated to go after him even harder.
As well as go hard against a senior officer who deliberately puts personnel in harms way. That is unacceptable for an organization and would demand inquiry and prosecution. The only nicety Stone extended was that Kirk could resign. After that his duty was clear, as was Shaw's.
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