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An old wound: Review reopens Aviano tragedy

Legal misconduct alleged in original trial

Oct. 28, 2007 - 11:48AM   |   Last Updated: Oct. 28, 2007 - 11:48AM  |  
The image from a 1998 TV broadcast shows the damaged Marine EA-6B Prowler based in Aviano, Italy, after it had clipped a metal cable car line the previous day, sending 20 people in the attached gondola to their deaths.
The image from a 1998 TV broadcast shows the damaged Marine EA-6B Prowler based in Aviano, Italy, after it had clipped a metal cable car line the previous day, sending 20 people in the attached gondola to their deaths. (The Associated Press)
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JACKSONVILLE, N.C. Almost a decade has passed since an EA-6B Prowler clipped a ski gondola cable, plunging 20 people nearly 400 feet to their deaths near Aviano, Italy.

But allegations that the staff judge advocate who recommended charges against the pilot and navigator of the four-man crew worked too closely with the prosecution has prompted a new review of the trial.

At the direction of the Navy-Marine Corps Court of Criminal Appeals, Lt. Gen. Joseph Weber, commander of Marine Corps Forces Command, has ordered a new SJA recommendation in the cases of Richard Ashby and Joseph Schweitzer.

Both men, captains at the time, were dismissed from the Corps in 1999 for their roles in destroying a personal videotape Schweitzer shot during the Feb. 3, 1998, flight, in which the radar-jamming jet was flying well below established minimum altitudes.

The incident grabbed headlines around the globe. Five Belgians, two Poles, seven Germans, three Italians, two Austrians and one Dutch national died in the accident.

Families of the victims filed a lawsuit against the U.S. seeking damages. In the end, the families settled for $40 million.

Dozens of news organizations converged on Camp Lejeune, N.C., where the pretrial hearings and courts-martial were held for the Marine Corps Air Station Cherry Point, N.C.-based crew.

Ashby was acquitted of manslaughter, but convicted of obstruction of justice and conspiracy. A military jury sentenced him to six months in the brig and dismissal from the Corps. Manslaughter charges were subsequently dropped against Schweitzer, who pleaded guilty to obstruction and conspiracy charges. He did not serve jail time. Charges were dropped against the two back-seaters.

The possibilities of a new SJA recommendation are wide-ranging, Marine Corps Forces Command officials said.

Weber could disapprove the legal sentences or lessen the punishment imposed by the court. He could also change a guilty finding to one that includes a lesser offense of the charges, set aside a guilty verdict, dismiss the charges or direct a rehearing, according to command officials.

What he can't do is increase the original punishment.

"Unless the convening authority sets aside or dismisses all the charges, these cases will be returned to the NMCCA for automatic review," officials said.

Col. Jenny Holbert, Marine Corps Forces Command spokeswoman, said Weber intends to issue a new convening authority action after he receives "a properly processed staff judge advocate recommendation and any other lawful matters submitted by the defense. The SJAR is currently pending."

The order comes on the heels of the appellate court's opinion that the "facts before us are sufficient to raise a colorable claim that the SJA who prepared the SJAR and addenda thereto became ‘embedded' with the prosecutorial effort in this case to an extent that it may have transformed his interest in the outcome to a personal one."

If nothing else, there was an "appearance that the SJA became an advocate for the prosecution," the court concluded. The original SJA, Col. D.E. Clancey, is now retired, MarForCom officials said.

The court gave the convening authority two options. The first was for Weber to order a fact-finding hearing into the allegations against the SJA and deputy SJA's participation with the prosecution. Weber chose the alternative, assigning a new SJA whose recommendations will be forwarded to the general for review.

The SJA for both cases is a Marine judge advocate colonel serving in Marine Corps Forces Command's Individual Mobilization Augmentee Detachment. The command's active-duty SJA is disqualified because he presided over the combined U.S. and Italian deposition hearings for each case in Trento, Italy, in 1998, MarForCom officials said.

Officials said it will likely take several months before the commander takes action on either case.

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