Aviation Mishap Story Time 14
Just... Can't Get Away From It
[Auth. Note - For ease of understanding and full context, you may want to read some or all of the preceding pieces in this series: AMST Intro, AMST 1, AMST 2, AMST 3, AMST 4, AMST 5, AMST 6, Helicopter Parenting, AMST 7, AMST 8, AMST 9, AMST 10, AMST 11, AMST 12, and AMST 13.]
After Clark’s crash, I had a couple of weeks before my 2L year law school classes recommenced. Daughter number 4 came along a few months thereafter, then came the holidays. The first few months with a new baby can be a bit of a blur, and we now had 3 girls under the age of 5, so that time is largely forgotten to me now besides the odd family, 8mm tape that my ex- still has.
It was just into second semester of my 2L year, first week of February, when I got a phone call from Major Mike Stahlman, USMC. While unexpected, it wasn’t completely unusual. I’d met Major Stahlman the prior summer while interning as a prosecutor at Camp Lejeune. He was the Review Officer at Lejeune, as well as being a former FLEP officer and aviator - a backseater in F-4s. We got on well and he had occasionally checked in on me regarding fitness reports and to see how I was doing while I was back at school. This call, however, not so much.
“You see the news about the Prowler in Italy?”
“Yes, sir, I did.” And I had. While it’s been 26 years now, and the internet back then was just getting started, this crash was a very big deal at the time - as in it made the evening news. Wikipedia calls it the Cavalese Cable Car crash. Nice bit of alliteration there, but I think the Italian is better: Strage del Cermis (The Cermis Massacre).
On 3 February 1998, an EA-6B Prowler, BuNo (bureau number) 163045, 'CY-02', callsign Easy 01, an electronic warfare aircraft belonging to Marine Tactical Electronic Warfare Squadron 2 (VMAQ-2) of the United States Marine Corps, was on a low-altitude training mission. At 15:13 local time it struck the cables supporting the aerial lift from Cavalese. The aircraft was flying at a speed of 470 knots (870 km/h; 541 mph) and at an altitude of between 80 and 100 metres (260 and 330 ft) in a narrow valley between mountains.
When reaching approximately 46.2837°N 11.4672°E, the aircraft's right wing struck the cables from underneath. The cable was severed, causing the cabin from Cermis with twenty people on board to plunge over 80 metres (260 ft), leaving no survivors. The plane had wing and tail damage, but was able to return to Aviano Air Base.
I’m not sure I had even heard the kind of detail above, but the news had reported the essentials pretty quickly: a Marine EA-6B Prowler had clipped a cable holding a ski gondola in the Alps, killing 20 people of various nationalities who were on vacation skiing. The lift was below 500’ AGL; I remember that detail came out fairly quickly.
I thought of my own crash - 6 seconds from the time the first engine coughed until we impacted the ground - and what it was like to fall roughly 130 feet in a helicopter sans power. Terrible, but at least a chance. Double the height and make it a ski gondola and it does not… get better. Horrifying. That is several seconds of everyone looking around at each other in free fall and knowing what the end is in advance… perhaps enough time for a parent to grab hold of a child. Believe me when I tell you that.
“Well, I’d like to see if you would be interested in working for the Defense Team of one of the pilots. I’ve been detailed, and there are a number of other folks who are going to be involved, and I wanted to reach out to you to see about your orders for this summer.” I was flattered and conflicted. I also recognized that I was one of only three people in the Marine Corps who had tactical aviation experience and was either a Judge Advocate already, or in the pipeline: Major Stahlman, another officer a few years ahead of me, a former C-130 pilot at Cherry Point, named Stu Couch, and myself - still in law school.1
He laid out what he expected and needed from me; I acknowledged I understood and would be honored to work on such an important case. Frankly, I couldn’t believe I’d been asked. I hung up and over the next few days I read what I could find - this was the early days of the internet, and internet search, so I was probably combing through millions of results on altavista to see what I could glean about the mishap. It did not look good.
Less than a week later, I got a call at night, just after dinner. And also from Camp Lejeune - except this time it was Major Carol K. Joyce, USMC, Chief Trial Counsel.2 I had worked for both Major Joyce and Major Stahlman the prior summer, although I’d probably had more face-time with Major Stahlman. Major Joyce was from Brockton, Mass., and also had a prior career in the Marine Corps before becoming a judge advocate. It didn’t take her long to get to the point.
“You hear about the EA-6 out of Aviano?” she asked.
“Yes, Ma’am, I did. Major Stahlman called me up to ask if I would be willing to work for the defense.” There was a long pause.
“Yeah, well, that ain’t gonna happen. You’re coming down here to work for the prosecution - for me, and Lieutenant Colonel Doc Daugherty. Do you know Doc?”
“Oh, no. No, Ma’am.”
“Okay. You’ll meet him. He’s a former federal prosecutor; he got out then back in. We’re going to be litigating this for the government, along with Stu Couch… and yourself.”
“Oh. Okay. Yes, Ma’am. Do I need to let Major Stahlman know-”
“No. I’ll take care of it. Keep an eye out in the papers and let me know when classes and exams end so we can get your orders set.”
And just like that I went from Defense to Prosecution before I’d even had a chance to take out a legal pad and pencil.
I got down to Camp Lejeune in late April, early May 1998. I know because the dates for the Article 32 hearing for the backseaters - Lieutenants Raney and Seagraves - was May 3, and I remember being in the courtroom for it, the big one behind the Legal Services building. It was a zoo compared to how staid it normally is. I was fortunate enough to have a pretty decent seat in the courtroom because technically I was assisting the prosecution - but I wasn’t on “fetch” duty (yet) because I had just gotten down there from law school. I also wasn’t there for my court-martial or trial acumen, but rather for my view of the events and the government’s evidence in light of what I knew about flying tactical aircraft in the Marine Corps.
Major Vernon “Stu” Couch was already around and we renewed acquaintances. Stu had finished the Law Program a few years before, so had already graduated law school and taken the Bar. His prior experience in fixed-wing aircraft was invaluable, moreso than anything I had to add as a tactical helo guy. Most of my contribution - and our attention - focused on the procedures and - in many ways - acting as our own mini-Aircraft Mishap Board to try to reconstruct what happened along the low level route and jive it with the blackbox and all of the other information we had.
Knowing where to find Notices to Airmen, local SOPs, Wing Orders, and all of the other information that the crew would - and should - have looked at in the conduct of the flight was both an AMB and a prosecution function. It’s also important information in determining possible culpability and at what level.
Some background on military law
Each of the pilots had their assigned (“detailed”) military defense counsel, their own civilian attorney (at their own cost), and an individual military counsel (IMC), which is typically granted in cases as serious as this. It’s an additional, experienced judge advocate that the accused asks for by name and the Convening Authority has the discretion to grant or not. Given the magnitude of the case, all four of the pilots involved had multiple attorneys and it made the proceedings kind of a circus. I don’t remember who the Article 32 Investigating Officer was, but I recall it was someone experienced - it may even have been one of our judges.
Article 32 of the Uniform Code of Military Justice (UCMJ) is basically akin to a grand jury proceeding, presided over by an Investigating Officer (IO) who is detailed by the ‘Convening Authority’. The CA is the senior officer, at least a General, who is the Commander with court-martial jurisdiction over the accused. The Article 32 IO is typically a judge advocate because Article 32 is only invoked for cases that are potentially going to the highest level court-martial the GCM, or General Court-Martial, where felonies, up to and including death penalty cases, are tried.3 Like a grand jury proceeding, it’s basically run by the prosecutor and the strict rules of evidence do not apply, however, legal privileges and self-incrimination still do and, most importantly, the accused is present and represented by counsel and gets to cross-examine witnesses and participate in the hearing - unlike a civilian grand jury proceeding. At this time, 32’s were routinely transcribed verbatim by a court-reporter, although that practice changed during my time in the business. The vast majority of JAs I knew and practiced with treated 32’s as serious business because they were; a 32 is the prelude to a possible GCM and I can promise the General who’s convening it gives a shit about it. Consequently, everyone else does, too.
By the time of the Article 32 hearing, when I showed up on the scene, a lot had already happened, both politically and legally.
In a formal investigation report redacted on 10 March 1998, and signed by Lieutenant General Peter Pace,4 the U.S. Marine Corps agreed with the results of the Italian officers. The investigation was led by General Michael DeLong, along with Italian Colonels Orfeo Durigon and Fermo Missarino. The document was kept secret until the Italian newspaper La Stampa legally obtained a copy from the U.S. archives and published it on 13 July 2011.
The Marine aircrew was determined to be flying too low and too fast, putting themselves and others at risk. The investigation team suggested that disciplinary measures against the flight crew and commanding officers should be taken, that the U.S. had to bear the full blame for what happened, and that victims' relatives were entitled to receive a monetary settlement.
The Italians, and a number of other European countries, were livid. The prosecution, understandably - and maybe even justifiably - was on jihad.
“Hey, I Think I know that Guy.”
I’m not sure if I already knew from a friend or not, but I can recall sitting in the courtroom when one of the two pilots came in and we locked eyes for a moment. Joe Schweitzer was the senior man in the aircraft, sitting right seat (IIRC) in the EA-6B Prowler, but he was not the pilot - he wasn’t a trained pilot at all, in fact, he was an NFO - and therefore not “on the sticks” when it happened.
He was senior to me by a few years, but after his first tour in EA-6, he had gone to a ground tour as a Forward Air Controller (FAC) with 2nd Tank Battalion at Camp Lejeune.5 One of the other aviators in the fire support team Schweitzer served with at 2nd Tanks was was my best friend, Jeff “Stinky” Prowse (who has previously appeared here and here). As it turns out, the summer prior - 1997 - I had enjoyed beers and burgers with the now accused Captain Schweitzer at a BBQ at Jeff and Debbie’s in New River base housing. This was just before Schweitzer got orders back to VMAQ-2 in Italy.
Again, I don’t know or even if he recognized me, or if Stinky had already raised it with me, but at some point I remember becoming cognizant that I knew one of the men in the dock - the senior guy in the aircraft.
And so we return (yet again) to the issue I raised in the first one of these about Bud Carson’s infamous Fairchild AFB crash, and that distinction between the daredevil and the adventurer, and the critical role that ego plays in fatal mishaps.
“It Doesn’t Look Good; that’s for sure.”
One of the most critical, but unreported facts by the Media, of the subsequent trials and even the second trials, was that the pilot, Richard Ashby, was on his last flight in the squadron. His transition package had finally come through approved and he had orders to go to the F/A-18 training squadron to become a Hornet pilot.
Ashby had always been a bit of an ill-fit for the Prowler. He was good flight student ane wanted Hornets, but instead got Prowlers. The best analogy I can think for the EA-6B and the F/A-18 is like a VW Microbus to a Lamborghini - both “cars” in the sense of being “vehicles that have 4 wheels and carry people” but otherwise being about as far apart as they can be while still technically in the same Kingdom.
He wanted this
He was flying this. “The Sky Pig Aircraft That You Have Never Seen.”
The EA-6B is an electronic warfare platform that is considered a national asset because of what it can do with electrons and electromagnetic energy. I have heard it claimed that the EA-6B could shutdown - i.e. broadband jam - all of the air traffic control radars that cover the DC to Boston corridor, among other tricks they have in their bag. The rumor is that Gulf War attack pilots couldn’t buy enough beer for the EA-6 guys back at the O’Club in Doha or wherever they were.
But the Prowler is an absolute pig compared to the Hornet… and Ashby was on his last flight in the Prowler. Nobody went out planning to kill 20 people or clip a cable, but there is little question in my mind that they went out to fly low and fast as part of the going-away for Ashby’s last hurrah in his airframe. The problem is that at that level - because they hadn’t been doing much low-level training all along - they got the navigation wrong and were one canyon over from where they thought they were.
Not My Circus, Not My Monkeys.
Thankfully, my participation in the case was extremely limited - for two reasons. First, my “expertise” - if one could even use that phrase for my background - wasn’t needed. They had no shortage of fixed-wing pilots they could talk to and I wasn’t even finished with law school yet. I also had my own stable of cases I was working; Camp Lejeune was the busiest jurisdiction in the Marine Corps and I needed trial experience, something I was going to get on the Aviano case. The second reason, and a more interesting phenomena for me, was the overt hostility by the prosecutors for aviators that resulted from their investigation. Let me suss this out a bit.
I have nothing but love and respect for Col Carol K. Joyce, who was a mentor to me and I would later serve under twice, but even her husband - himself also a CH-46 pilot(!) - used to joke with me when he would pop in the office to meet his wife for lunch that “since Aviano, I’ve been sleeping on the couch!” She would riposte that “all you aviators, you’re all the same!”
Doc Daugherty once reamed me out in his office and as far as I could tell, the sole reason was because I was “an aviator.” He and Major Joyce were very frustrated by the lack of aviators willing to come forward and call what Ashby did criminal, or to testify that Ashby had so deviated from rules and regulations that it should be considered criminal level negligence. Even their own witnesses hemmed and hawed and were unwilling to opine with the kind of certainty and zeal necessary to convince a jury of military members that these guys should be convicted and go to prison. More than once both prosecutors referred to aviators as being like the cops with the “thin blue line” or “code of silence.”
By the time the second trials for Ashby and Schweitzer concluded, I was back at law school and studying for finals and the upcoming Bar exam. My chief contribution to the case was getting the Gondola back from Italy because I knew how to work the Navy logistics flight system overseas.6
At the time, I thought that the Cavalese cable car tragedy marked my end with aviation mishaps for all time… but I had one more yet to go.
I had even met Stu when we were aviators at some point during coordination at some exercise or something or other at Cherry Point during my days as a pilot.
In military JAG parlance, the “trial counsel” is the Prosecutor.
By contrast, a Special Court-Martial (SpCM) can jurisdictionally give out no worse than one year of confinement, so it is in many ways it is like a state misdemeanor court, even if some of the offenses involved are (in fact) felonies. A Special requires no Art 32 investigation.
A note on LTGeneral Peter Pace - in AMST-12, I wrote about the deadliest training crash in Marine Corps (and maybe US) history. It occurred less than 2 years before this fatal mishap. The Commander during that exercise? Yes, General Peter Pace. Not to pile on the guy, HOWEVER… when I used to teach “Hazing” to legalmen at the Naval Justice School, I would play a 13 minute piece first aired by ABC News “PrimeTime Live” in February 1992 called “Hell Night.” It was a searing expose on one of the worse, and more embarrassing, hazing scandals in Marine Corps history because it occurred at Marine Barracks 8th and I, Washington, DC, home to the Silent Drill team. It’s pre-internet, but I still have the files and powerpoint deck. CO of the Marine Barracks at the time? Then Col. Peter Pace, who - completely unbelievably - claimed ignorance of the whole thing. (All of it was captured on videotape and one of the abused Marines got a copy and - justifiably - gave it to ABC News. It showed direct knowledge by the senior enlisted leadership that the abuse was going on; it was clearly institutional.) Pace somehow went on to 3 stars and at least 2 of the deadliest aviation mishaps under his watch, with 34 total dead. He’s either the unluckiest/most cursed commander ever, OR…
A FAC is assigned to a ground combat unit and trains and deploys with them. FACs and FOs, forward observers, are part of a small cell within a headquarters element that directs supporting arms. i.e. They call in planes to drop bombs, arty batteries to fire shells, and naval gunfire from ships to rain on someone’s parade.
A bit of useful military esoterica I picked up from my deployment to the Med a few years before while coordinating for various exercises.