NAVAL BASE SAN DIEGO, Calif. – Through two days of testimony, defense attorneys sought to disarm the government’s case against a young sailor accused of setting a fire that led to the destruction of an amphibious warship in 2020.
The attorneys called on over a dozen witnesses to refute the Navy’s contention that Seaman Recruit Ryan Sawyer Mays deliberately set a fire inside the former USS Bonhomme Richard (LHD-6), leading to a July 12, 2020, blaze that ultimately destroyed the ship. Federal agents had detained Mays three weeks later, suspecting him of arson after another sailor claimed he saw him in the area where the fire began.
The undesignated, deck seaman, 19 at the time, spent three months confined in the military’s brig in San Diego before he was released. Navy officially charged him in July 2021 with aggravated arson and hazarding a vessel, the latter which carries a life prison sentence if convicted.
Mays has claimed he’s innocent of the charges. His attorneys spent this week trying to convince the trial judge, Capt. Derek Butler, that there’s reasonable doubt to fully acquit the sailor.
The lack of physical evidence tying Mays to the fire gives enough doubt to the government’s investigation, they argued. Important evidence was poorly handled, they contend. The lead investigator and a government expert ruled out possible causes of the fire that couldn’t be disproved.
Investigators fixated on Mays, who one sailor claimed to see in the vicinity of the fire, even as they investigated at least one other sailor as potential suspects, his attorneys said. Mays – pining to return to SEAL training after dropping out – was portrayed as a disgruntled sailor aboard a ship in the 88th week of an extensive maintenance overhaul.
Lt. Cmdr. Jordi Torres, lead defense attorney, said its “very, very low standard” of the government’s presentation.
“There really isn’t any evidence” that Mays started the fire, Torres said on Sept. 23 during the trial.
But “you have circumstantial evidence all the time,” countered the lead prosecutor, Capt. Jason Jones, before adding “there is strong evidence of his guilt.”
Today, prosecutors and defense attorneys get in their final word during closing arguments.
Then it will be up to Butler to decide, since Mays elected to have the judge alone, rather than a military jury, decide his fate.
“I still think the government has a huge hurdle to get over to prove this case beyond a reasonable doubt,” Gary Barthel, who represented Mays for his Article 32 preliminary hearing, said outside the courthouse Wednesday afternoon. “There is no middle ground. If he finds Mays not guilty of arson, then it’s not guilty of hazarding a vessel. There’s no middle ground.”
“If the judge were to find Mays guilty of arson, he would have to find him guilty of hazarding a vessel,” Barthel said. “If he finds him not guilty of arson, he cannot then go and find him guilty of hazarding a vessel, because the two (charges) are connected.”
Barthel, a retired Marine Corps officer and former judge advocate now in private practice in California, has been observing court proceedings since the court-martial began Sept. 19.
During the Article 32 hearing, the hearing officer found there was insufficient evidence and recommended no charges, but the Navy nonetheless ordered Mays to a general court-martial.
The judge, however, is independent from the command that ordered the trial and he “is going to deliberate on the evidence,” Barthel said, adding he believes the judge “is going to evaluate everything that has been presented.”
The Navy’s command investigation into the fire pointed to suspected arson as a cause, based on the criminal investigation conducted by Naval Criminal Investigative Service and the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. Four days after the fire began, ATF agents and its National Response Team of investigators descended on Pier 2, where Bonhomme Richard was berthed as it prepared to wrap up a long, $249 million maintenance availability that was upgrading the ship to accommodate the F-35B Lightning II advanced multi-mission jet.
ATF Special Agent Matthew Beals, a certified fire investigator, led the agency’s report into the “origin and cause” of the fire and concluded that someone started the fire using a petroleum distillate liquid on thick, cardboard boxes packed, stacked and strewn about in the ship’s Lower V deck. ATF and NCIS agents combed through questionnaires and began interviewing members of the ship’s crew. By early August 2020, they zoomed in on Mays as the leading suspect.
Barthel said that as the fire was burning through Bonhomme Richard, the Navy already had assumed it was arson, labeling the ship “an active crime scene” even before the team of agents and investigators could access the Lower V deck where the fire was first reported.
Causes of Fire Debated
With arson suspected, investigators honed in on a section in the Lower V where what seemed like telltale signs of heavy fire and heat marked the origin of the fire. Over several weeks, they took photos of the destruction and debris on that deck and in the Upper V deck and ramps leading between the decks and the hangar bay. They recorded videos, including several walk-throughs with some of the ship’s crew who were in the vicinity or tried to access the deck as the fire began to spread. They inspected cables and wires, collected and analyzed data from heat sensors and scrutinized alarms and consoles in the ship’s damage control center.
Beals, one of the prosecution’s key witnesses, said that all helped pinpoint the general area where the fire originated.
Defense attorneys didn’t dispute that. But they disagreed with Beals’ conclusion that someone deliberately lit the cardboard boxes on fire. ATF’s own tests to replicate an open flame – like a BBQ lighter – and ignitable liquid against cardboard boxes showed that fire would initially peter out or take many minutes to grow and spread.
Mays’ attorneys suggested two possible causes from other items that were in the area of origin: An accidental fire caused by a spark in one of two forklifts or discarded lithium-ion batteries that ignited.
Beals had ruled out as a cause of an accidental ignition, such as from an electrical malfunction from the forklifts or lithium-ion batteries that were in the space or even a discarded cigarette.
But defense attorneys argued ATF was quick to dismiss other potential sources and causes of the fire. ATF’s investigation, they said, lacked detailed photographs and inspections of the forklifts, and it had no mention of Li-Ion batteries – a known fire hazard – that were strewn about in the area.
Andrew Thoresen, a forensics electrical engineer, scoured the Lower V during a four-hour visit to Bonhomme Richard in December 2020.
“I knew it was going to be quite the task to get it done in the amount of time” the Navy gave him, Thoresen testified Tuesday.
One forklift had signs “indicative of arcing. Electrical arcing,” he said in questioning by Torres, and he said he saw evidence of abrasion where wire touching a metal frame on the vehicle could spark. He also explained how different metal types like copper and aluminum in the vehicle can react to one another and melt at different temperatures.
Thoresen disagreed with ATF electrical engineer Michael Abraham, the government’s expert witness who testified last week that it was a “globule” of melted copper that hadn’t sparked any fire. But ATF didn’t do a detailed inspection of the forklifts or conduct an arc mapping “to substantiate how you eliminate it or how you identify it as a cause,” Thoresen said. “I can’t eliminate it” as a possible cause.
Same with the Li-Ion batteries, Thoresen said, which “cause fires all the time.”
He testified that he “was concerned because I see these fail so regularly.”
Although investigators took a photo of some batteries in an orange bucket in the Lower V, the ATF investigation, completed in January 2021, did not mention them. It wasn’t until Mays’ defense attorneys raised the issue that Beals collected eight “18650” Li-Ion batteries and scanned them at the National Fire Lab in Maryland.
Thoresen said an arcing event in the Lower V could have ignited combustibles that were in the area. Investigators had noted papers in the cardboard boxes along with a box of hand sanitizer bottles, office equipment, CO2 bottles and assorted trash in the vicinity.
Uniform in Question
Barthel said the hardest hurdle Mays’ attorneys faced was the testimony of a sailor who told investigators he saw Mays wearing coveralls in the Lower V deck before sailors reported the fire.
Personnel Specialist 2nd Class Kenji Velasco hadn’t mentioned Mays by name during his first interview with ATF and NCIS agents in August 2020. But Velasco, who was interviewed eight times by investigators and at one point thought he might be a suspect, testified last week for the government that he was certain that it was Mays he saw and not someone else.
Defense attorneys chose not to recall Velasco to the stand this week. Instead, they called on a sailor who testified seeing Mays around or at that morning’s 7:45 a.m. Sunday muster on the flight deck and wearing the Type III camouflage working uniform.
Mays “was the only one not wearing coveralls,” Matthew Gonzales, a former operations specialist, said Monday in questioning from Torres. After, “we split off and we get our individual assignments,” mostly cleaning duties, and he and Mays “went to go look for cleaning supplies” and split up. He said he later saw Mays in NWUs during a muster in the hangar bay.
Gonzales was interviewed four times by NCIS, Cmdr. Leah O’Brien, one of the prosecutors, reminded him. O’Brien’s questioning of Gonzales’ account of Mays’ whereabouts that morning quickly turned snippy.
“I said I knew where his cleaning station was. I did not know where exactly he was located,” Gonzales said when she pointed out what he argued were inconsistencies in the former sailor’s comments to NCIS.
“I am not lying,” Gonzales said.
Hopeful, Not Disgruntled, Sailor
Prosecutors, during last week’s testimonies, portrayed Mays as a disgruntled, disrespectful sailor who was angry about dropping from the Basic Underwater Demolition/SEAL course and subsequent reassignment to the “fleet Navy,” as he called it.
Mays, whose family sat in the courtroom during the trial, elected not to take the stand and testify in his defense. His attorneys sought to soften the government’s characterization. Midshipman 3rd Class Joshua McGill, a former intelligence specialist aboard Bonhomme Richard in 2020, had befriended Mays and they became workout buddies.
“We both dropped from BUD/S training and wanted to go back,” McGill testified via video call from the U.S. Naval Academy in Annapolis, Md. They shared a mutual interest in fitness “and talked about how to go back.”
Two days before the fire, McGill said, he and Mays had met up for some physical training and decided to do a 24-hour workout challenge. Starting about 4:30 p.m. that Friday, they did drills at a local San Diego gym, went to Coronado “and we did about an hour swim,” and went to a local park for a “run and ruck.” They hit the track and pull up bars at Naval Base San Diego and sand dunes at the beach.
It was “something to do that weekend. We figured it would help us train to go back to BUD/S,” McGill said.
Mays, he said, was interested in explosive ordnance disposal, and both had interest in the Navy’s search-and-rescue school.
By early morning Saturday, “we decided we were done,” McGill said, and they drove to the berthing barge around 4 a.m. He said he met Mays later that day, and they hung out with other people at a local beach. On the morning of the fire, he testified he saw Mays “a few times that day…. He was on a hose team” and wearing the Type III uniform.
Other Sailors Suspected
Defense attorneys have argued the Navy’s investigation fixated on Mays as a suspect and overlooked other possible people – a sailor or contractor or someone else who could have accessed the ship and deliberately set the fire.
Miya Polion was on Bonhomme Richard the morning of the fire, preparing to start engineering duty with a 7:45 a.m. muster. That took place in the hangar bay rather than in the Lower V due to planned hot work by contractors, Polion, a former damage controlman, testified Tuesday.
After morning colors, she testified, she headed down to the well deck to get snacks from the vending machines about 8:03 a.m. The air was “foggy,” she said.
As she was walking up the ramp, “I saw a guy running out of the Lower V,” she said. “He had jumped over a cone and he was running up toward the hangar bay.”
He stood about 5-8 or 5-9 and had brown skin and black, curly hair, and he wore blue coveralls and black boots.
“I never stopped looking at him, because it’s kind of weird you’d be running on the ship if there wasn’t a casualty,” she said when questioned by Lt. Tayler Haggerty, a defense attorney.
Polion said didn’t know his name at the time, she said, but she had noted it in NCIS’s questionnaire and she was questioned by agents. At one point, NCIS called in her duty section so she could identify the person she saw. She did, she testified, and it was Elijah McGovern, a fireman recruit who subsequently was questioned by NCIS four times and investigated last year until his separation from the Navy.
O’Brien, in cross-examination, tried to cast doubt on Polion’s ability to clearly see and identify the person she saw, noting that investigators determined, during a video recorded walk-through aboard the ship, he would have been 111 feet away from her. Polion said she mostly knew sailors in engineering and said “I saw him on the barge a lot.”
As they investigated Mays, investigators also had pursued McGovern as a potential suspect in part because the investigation found he had done Google searches on his phone that included “heat scale fire white,” NCIS Special Agent Maya Kamat testified Tuesday. But the sailor told them he was researching fire-breathing dragons for a fantasy novel with a friend in Texas and showed them a manuscript of the work, Kamat said.
When graffiti about the fire popped up on the ship and in porta-potties – one included “ha ha ha I did it. I set fire to the ship” – investigators looked into several sailors including McGovern, and a handwriting expert analyzed their handwriting samples.
Thomas Murray, a forensic document examiner with the U.S. Army Criminal Investigation Laboratory in Georgia, testified he “didn’t see any evidence there was more than one writer” and he saw “some similar characteristics” between McGovern’s and the graffiti. But when questioned by O’Brien, Murray conceded that additional samples would have provided a stronger conclusion either way.
Agents stopped investigating McGovern when he left the Navy, Kamat said. McGovern, who was coming off duty the morning of the fire, hasn’t been charged, and prosecutors told the judge last month that they had been unable to locate him.