Newsgroups: rec.aviation.military
From: baldwin@netcom.com (J.D. Baldwin)
Subject: Re: Marine Pilot Acquitted in Crash
Date: Sat, 6 Mar 1999 16:16:42 GMT

In article <7bqnin$br0$1@nnrp1.dejanews.com>, <janneglad@hotmail.com>
wrote:
> > I think he's got a shot at de facto jury nullification on the
> > grounds that he was trying to avoid an unfair and politically
> > motivated prosecution.  Frankly, I sympathize with his decision to
> > destroy the mission tape.
>
> These sentences of yours carry an idea that any prosecution (in an
> Italian court? in any other but a Marine court?) against him would
> have been unfair and politically motivated.

That might have been his perception, of course.  It doesn't excuse his
conduct, but perhaps it mitigates it a bit.  Once he realized that
what properly ought to have been an inquiry into his adherence to
flight regulations -- perhaps a FNAEB, perhaps a court-martial for
disobedience of orders -- was going to turn into a show trial on
homicide -- *homicide*, for chrissakes! -- charges, he got rid of the
evidence.

> > Blame the prosecutors for grossly overreaching, then.  His
> > responsibility doesn't include criminal culpability for every
> > screwup.  Even if he *was* intentionally busting altitude and speed
> > restrictions (and I am fairly well convinced that he was), the
> > normal perception in mountain flying is that you put no one --
> > realistically speaking -- at risk besides yourself in so doing.
> > Manslaughter charges don't require specific intent, but they do
> > require a state of mind in the defendant in which he is aware of a
> > significant risk to others and disregards it recklessly.
>
> I'd blame the system of law involved; in many other courts the judge
> would have instructed (and it would have been his job to do so) the
> prosecutors to change the charge to a more fitting one.

There's a good reason that this doesn't get done very much in military
courts:  unlike most court systems, the concept of "lesser included
offenses" is not an option.  The military jury may *always* find an
accused guilty of some lesser included offense when the factual findings
support it.  Thus you are less likely to get stupid, outrageous
hijinks such as what we all saw in the "British nanny" case.

Of course, LIO's aren't really what was appropriate here.  The judge
should have dismissed the manslaughter charge right off, before
allowing the jury to be empaneled.  That way, they could have come
back with orders violation charges, which would have been a hell of
a lot more appropriate.  (And a slam dunk besides.)

> > The fact that a wildly improbable freak occurrence actually happened
> > is not indicative of his state of mind.
>
> Masts, power lines, or gondola cables don't occur, they exist, and
> if I'm not wrong the point of a minimum height level over an _area_
> was a concern over those (and not just over noise levels and
> complaint from civilians).

The "occurrence" was the collision, of course.  And the point of an
altitude restriction can be a lot of things.  Noise abatement is the
most common.  God forbid US aircraft should disturb Europeans' ski
vacations as they train to do their dirty work for them . . . again.
Safety considerations of such restrictions, at least when imposed
over sparsely populated areas, are more for the safety of the crew
and the airplane than for anyone else.

The 1,000' restriction was widely perceived in the EA-6B community as
just another bullshit bureaucratic imposition of a requirement counter
to the interests of realistic training.  (And, I happen to agree with
this assessment as correct.)  That does NOT relieve Ashby of a duty to
obey it anyway, but it does argue strongly against the idea that any
reasonable person in his position would have considered and ignored
the risk to others inherent in busting that restriction.

I posted elsewhere, and someone else agreed, that it pretty much never
crosses your mind that busting altitude restrictions on a mountain
low-level would ever put anyone other than yourself (and your crew and
airplane) at risk.  As I mentioned in that post, we are of course all
experts on the consequences of striking a ski lift cable, but our
hindsight is not a fair standard by which to judge the actions of
another who acted without benefit of clairvoyance.

> Further, as much as I agree with the need for pilots to practise
> very low-level flying for combat missions, the pilot was not on such
> a training mission (he had a floor that was higher than for such
> exercises), or is my information incorrect?

That's why the altitude restriction was so despised, and why Ashby's
crew are probably not the first to bust it on purpose.  1,000' AGL is
grossly unrealistic for any kind of useful training.  Again, that's
not an excuse for the orders violation, but it is directly relevant to
Ashby's state of mind, which does not remotely support charges of
manslaughter.
--
 From the catapult of J.D. Baldwin  |+| "If anyone disagrees with anything I
   _,_    Finger baldwin@netcom.com |+| say, I am quite prepared not only to
 _|70|___:::)=}-  for PGP public    |+| retract it, but also to deny under
 \      /         key information.  |+| oath that I ever said it." --T. Lehrer
***~~~~-----------------------------------------------------------------------

Newsgroups: rec.aviation.military
From: baldwin@netcom.com (J.D. Baldwin)
Subject: Re: Marine Pilot Acquitted in Crash
Date: Sat, 6 Mar 1999 16:19:41 GMT

In article <36E13688.2D0652D8@futuresouth.com>, Jonathan D. Goldstein
<jdgold@futuresouth.com> wrote:
> If this guy is not guilty, why did he try to hide the HUD tape?

He *is* (almost certainly) guilty -- of violation of flight
regulations.  His destruction of the tape (assuming that's true) is a
strong indicator of this.  But it doesn't prove that he's guilty of
manslaughter.  That charge was ridiculous.
--
 From the catapult of J.D. Baldwin  |+| "If anyone disagrees with anything I
   _,_    Finger baldwin@netcom.com |+| say, I am quite prepared not only to
 _|70|___:::)=}-  for PGP public    |+| retract it, but also to deny under
 \      /         key information.  |+| oath that I ever said it." --T. Lehrer
***~~~~-----------------------------------------------------------------------

Newsgroups: rec.aviation.military
From: baldwin@netcom.com (J.D. Baldwin)
Subject: Re: Marine Pilot Acquitted in Crash
Date: Sat, 6 Mar 1999 20:27:05 GMT

In article <7brqa0$fo0$2@q.seanet.com>, John Weiss
<jrweiss@seanet*NOSPAM*.com> wrote:
> The tape you refer to was a personal video tape from a
> personally-owned camera.
>
> Using your logic, anyone who invokes the 5th Amendment protection
> against self-incrimination automatically lacks integrity...

The Vth Amendment has never been considered to extend to physical
evidence generated by the accused.  Destruction of evidence is still a
crime, one for which soon-to-be-ex-CAPT Ashby will very likely pay.
--
 From the catapult of J.D. Baldwin  |+| "If anyone disagrees with anything I
   _,_    Finger baldwin@netcom.com |+| say, I am quite prepared not only to
 _|70|___:::)=}-  for PGP public    |+| retract it, but also to deny under
 \      /         key information.  |+| oath that I ever said it." --T. Lehrer
***~~~~-----------------------------------------------------------------------

Newsgroups: sci.military.naval
From: baldwin@netcom.com (J.D. Baldwin)
Subject: Re: Marine pilot not found guilty of cable car collision
Date: Sat, 6 Mar 1999 15:46:52 GMT

In article <36E0FD62.E0E472D1@bigfoot.de.nospam>, Doc
<mpet@bigfoot.de.nospam> wrote:
> > >Was it a "safety height" or an administrative restriction?
> >
>
> Does this really matter ? I mean i'd expect that both are obeyed
> since one of the reasons for an admin. restiction is proberly
> safety.

It matters greatly.  If the restriction had been promulgated as,
"Don't bust 1,000' because you might hit a cable car and kill
civilians," then the recklessness of ignoring that restriction would
be gross enough to justify a manslaughter charge.  If, instead, it was
merely handed down as another new rule, and not emphasized, then
there's no good reason to think that Ashby violated it knowing that he
might be putting others at risk.

In either case, he's guilty of many things:  bad judgement, violation
of orders, even perhaps misprision of assets.  But it's not even close
to manslaughter.
--
 From the catapult of J.D. Baldwin  |+| "If anyone disagrees with anything I
   _,_    Finger baldwin@netcom.com |+| say, I am quite prepared not only to
 _|70|___:::)=}-  for PGP public    |+| retract it, but also to deny under
 \      /         key information.  |+| oath that I ever said it." --T. Lehrer
***~~~~-----------------------------------------------------------------------

Newsgroups: sci.military.naval
From: baldwin@netcom.com (J.D. Baldwin)
Subject: Re: Marine pilot not found guilty of cable car collision
Date: Sat, 6 Mar 1999 05:50:00 GMT

In article <19990305222613.19644.00003607@ng63.aol.com>, Velovich
<velovich@aol.com.CanDo> wrote:
> >Hardly. However, there's evidence of gross negligence;
>
>   Not according to a duly appointed and instructed Jury.  It is
> over.  Unless you advocate getting rid of the various constitutional
> guarantees for the members of the Military...

The jury in this case didn't say there was no evidence of gross
negligence; it just said that there wasn't near enough to show Ashby's
state of mind to be reckless beyond a reasonable doubt.

>   I'll bet you think OJ was "responsible" for Nicole's death...

Why not?  It's pretty obvious to nearly anyone familiar with the most
basic facts of the case.  And to top it off, "responsible" is
*exactly* what the jury found him to be.  Despite being "not guilty."
--
 From the catapult of J.D. Baldwin  |+| "If anyone disagrees with anything I
   _,_    Finger baldwin@netcom.com |+| say, I am quite prepared not only to
 _|70|___:::)=}-  for PGP public    |+| retract it, but also to deny under
 \      /         key information.  |+| oath that I ever said it." --T. Lehrer
***~~~~-----------------------------------------------------------------------

From: thunder@rmii.com (Ed Rasimus)
Newsgroups: rec.aviation.military
Subject: Re: Marine Pilot Acquitted in Crash
Date: Sat, 13 Mar 1999 16:00:11 GMT

Ed MacNeil <macneil@nh.ultranet.com> wrote:

>Now Ed, let me take you to task a bit.
>
>The utility of a radar altimeter depends on what is going on and how it is to
>be used.  I spent a good bit of time in FB-111s.  In that aircraft (and all
>other versions of the F-111), the terrain following radar would not work at
>all without a functioning radar altimeter.  I believe this is also true in
>the B-1 and several other airplanes.  On my watch most of the training was
>for a nuclear environment and therefore visual low level was not much of an
>option.

Of course. But, this was a visual mission. This was not a TFR
aircraft. This was low-level along an approved route in the mountains.
When low levels are flown in mountains there are ridge-crossings and
military-crest convolutions and altitudes vary considerably. This was
also conducted in an area with ongoing combat operations. Recall that
Aviano is hosting most of the US aviation in Bosnia.

The continual bleating of the media by folks who don't know what end
of the airplane the hot air comes out of is disgusting. You can't fly
"too low" or "too fast" in a combat environment. You certainly must
abide by peacetime restrictions, but most aviators recognize that to
"train like you  plan to fight" requires both judgement and occasional
deviations from regulations.

You aren't "flat-hatting" when you roll to keep the airplane from
ballooning over a ridge line. Nor when you push it up by
2-miles-per-minute to get back on track for a TOT. You aren't a
bad-guy when you correct to course or cut a corner for the same
purpose.

I don't know for sure whether Ashby was a good guy or a bad guy, but I
do know that he was the one with wings and the ones who are pleading
for a scapegoat aren't combat aviators.

>
>I did have one experience with visual low level that is probably worth
>relating and may have some relation to the gondola mishap.  This happened
>during my first trip to "Red Flag".  Was clipping along at about 600 KIAS and
>flying (manually) at what looked to be about 200-300'.  Happened to glance at
>the RA and saw 50'.  After recovering from my temporary rectal cranial
>inversion I smartly climbed to a more fitting altitude.  I later found that
>this is a common problem at "Red Flag".  I had spent a number of years flying
>in the east where the trees are about 100' high.  The desert brush is about
>10-15 feet high.  Thus, by relying on visual references and descending until
>TLAR (that looks about right) occurs I found myself much lower than I
>intended.

That might be true, but I've got more than "one experience with visual
low level" out of Nellis and Holloman and Incirlik and Korat and even
Aviano. I've done the window check on the range tower and measured the
tops of the telephone poles and out of Incirlik we even used to go
nose-to-nose with Turkish railroad steam engines to get them to throw
on the brakes with the big plume of smoke. Flying effectively in
combat requires low level and that requires training.

When an accident happens, sometimes it's just that--an accident. We
don't have to eat our young because someone hysterically and
emotionally demands it.


 Ed Rasimus                   *** Peak Computing Magazine
  Fighter Pilot (ret)         ***   (http://peak-computing.com)
                              *** Ziff-Davis Interactive
                              ***   (http://www.zdnet.com)