February 3, 1999
A year ago, a Marine jet sliced through the cable of a ski gondola, sending 20 people to their death. The Marine pilot involved in the disaster goes on trial tomorrow.
JIM LEHRER: The trial of the Marine aviators involved in the Italian cable car disaster: Phil Ponce begins our coverage.
PHIL PONCE: One year ago today, a Marine Corps jet on a low-altitude training mission in Northern Italy clipped an aerial cable at a ski resort in Cavalese, Italy. A gondola filled with skiers plunged about 360 feet to the ground, killing all 20 passengers. The plane was damaged, but the four-member crew returned safely to the U.S air base in Aviano. When officials learned that the plane had cut the cable and caused the accident, all four crew men were grounded. Residents who live nearby had often complained about fast, low-flying military planes. The Marines immediately launched an investigation and sent a team from the United States to figure out what had happened. On March 12th, they released their findings.
MAJ. GEN. MICHAEL DE LONG, U.S. Marine Corps: The cause of this accident was not the weather or aircraft malfunctions or equipment failure, but the actions of the air crew.
PHIL PONCE: Regulations listed a minimum flight level of 2,000 feet, but the crew claims they were told they could fly as low as 1,000 feet. The cable was about 360 feet off the ground when it was cut. Pilot Captain Richard J. Ashby and navigator Captain Joseph P. Schweitzer face court-martial and possible life sentences if they're convicted. Both are charged with 20 counts of involuntary manslaughter and 20 counts of negligent homicide. Charges were dropped against two other crew members who were sitting in the back of the plane, away from the control panel, at the time of the accident.
In an interview last month on the CBS program 60 Minutes, the pilot, Captain Ashby, said, "Mistakes were made and that's obvious, otherwise, it wouldn't have happened, but they weren't all our mistakes" - and "we never intended intentionally ever to fly below 1000 feet. That is the God saken truth." Ashby insisted that the maps he was given for the training flight did not show the ski resort or the cable line. Jury selection in Ashby's trial begins tomorrow in Camp LeJeune, North Carolina. The navigator's trial is scheduled for March.
|It differs from a civilian trial.|
JIM LEHRER: Elizabeth Farnsworth in San Francisco takes it from there.
ELIZABETH FARNSWORTH: For more now, we turn to Colonel Scott Silliman, who retired as an Air Force lawyer in 1993 and who is now executive director of the Center on Law, Ethics, and National Security at Duke University's School of Law; and George Wilson, who covered the pentagon for the Washington Post from 1966 to 1991, and who now covers it for the Post's online news service. He is the author of six books on the military.
Colonel Silliman, as we just heard, the pilot's court-martial begins tomorrow. Describe what happens tomorrow and how it differs from a civilian criminal trial.
COL. SCOTT SILLIMAN, (Ret.), Former Air Force Lawyer: Well, Elizabeth, what's going to happen tomorrow and probably Friday is the jury selection. Under the military justice system, the commanding general at Camp LeJeune selects an initial pool of jurors, each one of which must be an officer and senior in grade to Captain Ashby. Lawyers for both the government and the defense will ask questions of this potential pool, and if one suggests a partiality or an inability to decide the case fairly, he or she may be challenged for cause, and removed from the pool. Each side also has what's called a peremptory challenge, where they can be taken off the pool for any reason whatsoever. But the important thing is, under the law governing the military justice system, there must be a minimum of five jurors to sit in this trial.
ELIZABETH FARNSWORTH: And there could be more than that, right?
COL. SCOTT SILLIMAN: Yes. And normally, there is, Elizabeth. A convening authority will start out with a trial of between eight and twelve jurors to make sure that it never falls below that statutory minimum of five.
ELIZABETH FARNSWORTH: And it takes a two-thirds vote to find somebody guilty?
COL. SCOTT SILLIMAN: Yes, it does. And that's one of the peculiarities of the military justice system as against the civilian system, where in most states, you require a unanimous verdict. In the Uniform Code of Military Justice, the provision is that a member must be found guilty by a minimum of a two-thirds vote. Now, that raises some interesting questions during this jury selection, because sometimes the size of the jury, the number of members, when you figure in the two-thirds, can make it advantageous to the defense or the government, depending upon what the ultimate number is. For instance, if you have six members on the jury, it requires four to convict; if you have seven members on the jury, it requires five to convict; and eight members requires six. That really works to the advantage of the defense with those numbers, because they only need to persuade three in order to come out with an acquittal.
|Flying station wagons.|
ELIZABETH FARNSWORTH: And Colonel Silliman, what will be the main argument, as you understand it, of the prosecution when the trial begins early next week, when the arguments begin?
COL. SCOTT SILLIMAN: Well, as I understand the evidence, Elizabeth, what the government is going to try to argue is that even though the ski resort and the cables might not have been on the maps furnished to the crew, and even though they were given permission to fly down to 1,000 feet rather than the prescribed 2,000 feet, which was supposed to be the distance, I think the government's going to argue that if they were flying at the proper speed and at 1,000 feet or above, they would have seen the cables in time, they would have been too high to have hit them, and therefore, the negligent act of the crew was responsible for the death of 20 people.
ELIZABETH FARNSWORTH: George Wilson, do you have anything to add to what the prosecution's case will be?
GEORGE WILSON, Legi-Slate News Service: Well, I think they'll also make a big point out of the fact that it wasn't just one speed run, but the formal report said that they were over the speed limit by over 100 knots several times, not just the time they hit the cable. Also, the visibility was clear. Also, there was a ski resort marked on the map near the incident, so that one could argue, if you were the prosecutor, that you knew that you were in an area that had ski resorts, and therefore, extra caution was advised, instead of aggressive flying.
ELIZABETH FARNSWORTH: And Mr. Wilson, from what you understand, what will the main argument of the defense be?
GEORGE WILSON: That they did not see the cable; that they were misinformed about the 2,000-foot altitude; that they weren't being reckless; that part of an EA-6B's defense is to maneuver quickly. They're basically a defenseless airplane. They're an electronic jamming aircraft, so the only defense when you're being attacked is to get down low and maneuver sharply and quickly, and this is part of the regular training of an EA-6B training squadron. It's their survival. And they were trying to do the job as prescribed. They made a mistake. They were too low, but it was not deliberate. That should be their -- and also, the radio altimeter, which should have warned them, may not have been working.
ELIZABETH FARNSWORTH: Mr. Wilson, you've spent a lot of time in these planes. Why do they practice these very low flights? What do they do exactly? What are they used for in the military?
GEORGE WILSON: Well, they're basically jamming aircraft. Right now, for instance, one reason that Iraq has been unsuccessful in shooting down our aircraft, despite many tries, is that they're being jammed by EA-6B's, which hang off about 20 miles and put a fire hose of electrons down on the Iraqi radar system, so all the operator sees on his scope is snow. And they fly kind of lazy circles, concentrating on putting these electrons on the bad guy's air defenses. But if they should be attacked by a fighter plane, they don't have guns, for instance. The nickname is the "Flying Station Wagon." So the only way they can survive is to get down low and maneuver sharply, so that they can survive an attack by a fighter. But basically, they're flying racetrack pattern, shooting electrons into air defenses, and if they need to, HARM missiles. And it's very boring, so when you get a chance to do low-level flights, there is a tendency to rack and bank and maneuver the plane very sharply.
ELIZABETH FARNSWORTH: Colonel Silliman, do you have anything to add to what the defense argument might be?
COL. SCOTT SILLIMAN: Well, I think there are a couple of other factors that George might -- didn't mention. One is, I think the defense is going to try to call an expert who's done a computer simulation of a run through the valley, and that defense expert may suggest that there's almost an optical illusion; that as the plane goes out the valley, that the ground starts to fall away, and it perhaps, I think they would argue, suggested to the crew that they were flying actually higher than they were. There's one other thing that I think Frank Spinner, who is the defense counsel in Ashby's case, might mention, and that's the political overlay of this. As everyone knows, the Italians tried to prosecute the air crew initially under the NATO status of forces agreement. That was not permissible. It was a duty case, and therefore, they had to be tried in our courts. But there was at least an initial threat by the Italians to reduce or totally foreclose the landing rights at Aviano air base. Now, Aviano is crucial to the NATO mission in the Balkans, and so, there is a question probably that the defense will raise as to whether on the facts as they now stand, with a real close question, as George has raised some of these matters, whether there would be a trial but for perhaps some international pressure or pressure from Washington to carry through with this trial. And it wouldn't surprise me if the defense tried to bring that out.
GEORGE WILSON: That's true. But they did try that, as you remember, in the Article 32, and in fact asked for a dismissal because of extra influence.
ELIZABETH FARNSWORTH: This is in December, right?
GEORGE WILSON: Right.
COL. SCOTT SILLIMAN: Yeah.
GEORGE WILSON: And the Article 32 investigation is like a grand jury investigation, and at that time, the judge said, "No go. We're going to continue."
ELIZABETH FARNSWORTH: Mr. Wilson, has -
COL. SCOTT SILLIMAN: Right but -- excuse me.
ELIZABETH FARNSWORTH: Go ahead.
COL. SCOTT SILLIMAN: There's a big difference between denying a motion to dismiss the charge, which means there's virtually no evidence to support it, and going into the trial itself, where it's a two-thirds vote for guilty. So I would be very surprised if the defense did not raise that again to try to persuade the jury.
GEORGE WILSON: No, I agree. But I think it's been tried also before, and they'll try it again.
ELIZABETH FARNSWORTH: George Wilson, briefly, has compensation been paid to the victims?
GEORGE WILSON: Some compensation has, but the families themselves are still waiting for congress to come through with money that has not reached them. So it's still up in the air.
|How important is this case?|
ELIZABETH FARNSWORTH: And how important is this case from the military's point of view? You've spent a lot of time with people that fly these planes. What's at stake here?
GEORGE WILSON: Well, it's one of those damned if you do, damned if you don't cases, because if they don't penalize anybody for what has been charged as reckless flying, that'll send the wrong message to the aviation community, especially electronic warfare. If it's overkill, and they put them away for life, I think the message would be that "Hey, that's unfair. Accidents do happen. We were training the way we're supposed to. We were yanking and banking, and that's part of the way the EA-6B is supposed to be handled." So I think that it has to be kind of a middle ground penalty. I don't think letting them off scot-free would be acceptable, but overkill, putting them away for life, I think would not be the right message, either.
ELIZABETH FARNSWORTH: Colonel Silliman, how would you describe the significance of this case?
COL. SCOTT SILLIMAN: Well, I agree with George that I think it's really a no-win case for the Marine Corps. I think that if the facts are close as they come out in trial, then if the Marine Corps does end up with a conviction in this case and any kind of a sizable punishment, I think it's going to send a real chilling effect to air crews, not just in the Marine Corps, but in all the services, who are being told to train to the finest edge for combat, and yet in this situation will be penalized when they did, and perhaps committed an error in judgment. The other thing, Elizabeth, is, I think it's going to be important to watch the trial and the media coverage of it, because my understanding is that many of the families of those that were killed in Italy are going to be coming to camp LeJeune and be there. There will obviously be a high media interest. And traditionally, the military, all the services have not done real well in handling high- visibility cases. So we'll see how the Marine Corps does with this one. The Air Force, with the Kelly Flynn, and the Army, with Gene McKinney's case, did not fare too well.
ELIZABETH FARNSWORTH: All right.
GEORGE WILSON: Especially grisly pictures of the victims. There are awful, awful pictures that they show them.
ELIZABETH FARNSWORTH: All right. Well, thank you both very much for being with us.
GEORGE WILSON: Thank you.
COL. SCOTT SILLIMAN: Thank you, Elizabeth.