Today’s Ashby and Schweitzer opinions together total 75 pages. Yet, as one might expect of decisions rendered by two sitting CAAF judges, two senior judges, and one U.S. district court judge sitting by designation, they break little new legal ground. Rather, the opinions are highly fact specific.
Both cases arise from a 1998 incident in which a Marine Corps Prowler struck the cables supporting a cable car near Cavalese, Italy, resulting in the deaths of 20 civilians in the cable car. At the end of the flight, Capt Schweitzer — the navigator –handed a personal video camera that had recorded part of the flight to Capt Ashby, the plane’s pilot. Capt Ashby removed the tape from the video camera, put a blank tape into the camera, and put the original tape in his flight suit. Capt Ashby later gave the original tape to Capt Schweitzer, who burned it.
At an initial general court-martial, Capt Ashby was acquitted of all offenses arising from the flight itself, including charges of involuntary manslaughter and negligent homicide. Before the initial trial, Capt Ashby declined to consent to the addition of an Article 133 charge alleging conduct unbecoming an officer and a gentlemen by obstructing justice and conspiring to obstruct justice arising from the removed and destroyed videotape. At a second court-martial, contrary to his pleas, he was found guilty of those offenses. Capt Schweitzer pleaded guilty to similar charges.
CAAF today affirmed NMCCA’s affirmance of the findings and sentences in both cases. In Schweitzer, Judge Stucky wrote for a unanimous court. In Ashby, Judge Erdmann wrote an opinion of the court joined in full by Senior Judges Cox and Gierke and U.S. District Judge Goodwin. Judge Stucky concurred to note a certain understanding regarding a portion of the opinion of the court and to note his continued questioning of a portion of the post-trial delay analysis in United States v. Bush, 68 M.J. 96 (C.A.A.F. 2009), that the majority applied in Ashby.
Before CAAF, both Ashby and Schweitzer argued that the Article 134 offense of obstruction of justice doesn’t cover instances where a foreign investigation — in this case by the Italian government — is impeded. CAAF ultimately declined to address that argument, finding that the behavior was sufficient to constitute conduct unbecoming an officer and a gentlemen and that the two captains had adequate notice that destroying the videotape was illegal. In perhaps the most precedentially significant portion of the two opinions, in Ashby, the court rejected ACMR’s holding in United States v. Gray, 28 M.J. 858 (A.C.M.R. 1989), that “an official act or investigation must be manifest before an accused can be found guilty of obstruction of justice.” Ashby, slip op. at 13 n.4. Another jurisprudentially significant aspect of the cases is Schweitzer‘s holding that an accuser issue is nonjurisdiction and is waived by an unconditional plea of guilty. Schweitzer, slip op. at 7-8.
And each opinion addressed other case-specific issues as well.
In probably the most newsworthy portion of the opinions, Ashby analyzes and rejects an accuser challenge against then-LtGen Peter Pace.