Elite cadre of former military lawyers in demand

This past Feb. 3, U.S. Marine Corps pilot Richard J. Ashby flew into a ski lift over an Italian valley, snapping a cable and sending 20 skiers to their deaths. After Capt. Ashby's Prowler aircraft limped back to the NATO base at Aviano, a mechanic told reporters that it was a "miracle" the crew had survived.

Now awaiting court-martial on manslaughter charges, which could put them behind bars for life, and further accused of obstructing the accident investigation, Ashby and his navigator, Capt. Joseph P. Schweitzer, need another miracle.

To try to make it happen, both men have looked beyond the uniformed counsel assigned them by the military's Judge Advocate corps. They have drawn their defenders instead from an elite cadre of former military lawyers, now in civilian practice.

In so doing, Ashby and Schweitzer have emulated defendants in some of the military's highest-profile cases of recent years: Navy Cmdr. Robert Stumpf and Marine Lt. Col. Cass Howell in the Tailhook scandal; Air Force 1st Lt. Kelly Flinn, accused of adultery; Army drill Sgt. Delmar Simpson in racially charged sex scandals at Aberdeen (Md.) Proving Ground; and Sgt. Maj. Gene McKinney, the Army's top enlisted man, in a sexual harassment case.

Although these cases have inspired nationwide controversy, little attention has been paid to the often-arcane mechanics of military justice-or to the system's most skilled practitioners.

All service members accused of a crime have the right to hire civilian counsel. But few do: Most of them lack the money, and most civilian attorneys lack the specialized expertise. "There are probably a few dozen [civilian] lawyers around the country who spend a substantial amount of their time dealing with military issues," explained Gene Fidell, a respected former Coast Guard lawyer who cofounded and is president of the National Institute of Military Justice, a professional association. All ex-military lawyers themselves, these attorneys offer a level of experience, media savvy and independence that their colleagues still in uniform can rarely match.

One of the most acclaimed members of this elite-Frank Spinner-is now defending Ashby.

Just two years after retiring from the Air Force to enter civilian practice, Spinner took on his former military service as counsel to Kelly Flinn-the pioneering female bomber pilot accused of lying about and disobeying orders to end an adulterous affair with another servicewoman's husband. Although Flinn was ultimately discharged, it was on far better terms than the Air Force had first threatened, and she escaped a court-martial-an outcome widely attributed to Spinner's spin, which successfully recast the issue as one of a woman's right to a private sex life.

Spinner "knew exactly where the vulnerabilities were," said retired Brig. Gen. David Brahms, once the Marine Corps' top-ranking lawyer and now in private practice. "Brilliant, brilliant stuff. . . . There are few attorneys in the country who could pull that one off." "A lot of things fell in the right place at the right time," Spinner said modestly of Flinn's case. But he admitted that Ashby hired him in part for his media savvy. Spinner's defense of Flinn, said Brahms, "is the paradigm case in terms of how the media . . . can impact the military justice system."

Such public tactics are alien, even anathema, to many in uniform. Military defenders operate under a degree of "self-imposed restraint," Spinner said. "If they become too visible, too zealous, too aggressive," he added, "there's a perception that that could have a negative impact on their career."

Spinner stressed, however, that his own Air Force career did not bear that perception out: After one highly public defense, he was both criticized and then offered a promotion. Both he and navigator Schweitzer's lawyer, retired Marine Corps attorney Lt. Col. David Beck, praise the integrity of the uniformed corps of defense lawyers, who are formally independent of military prosecutors. Both Spinner and Beck have kept the military lawyers assigned to their clients on the defense team-standard practice for civilian counsel. Beck defended the military defenders. "Their obligation, first and foremost, is not to the military or to their command," he stated. "Their obligation is to their client. And by and large, most of them understand that and carry that out."

The civilian lawyers aren't shy about offering reasons why they're worth the money. "What I bring to the table," Beck stressed, "is my years of experience." Civilian counsel makes sense, Spinner agreed, "especially in the more complex cases." Many military attorneys are just a few years out of law school.

Still, military counsel is adequate for most cases-and it's free. The military automatically assign counsel to every defendant, and even grant the accused the right to choose any "reasonably available" military attorney in a 100-mile radius. "The military system affords a right to counsel that is probably better than virtually any other system in the country," said Dwight H. Sullivan, a former Marine Corps lawyer who's now with the Maryland chapter of the American Civil Liberties Union.

"Any critic ought to go ahead and visit their local civilian courts," said Fredric I. Lederer, a law professor at the College of William and Mary in Virginia. "Many of us are convinced that the military system is, as a practical, day-to-day matter, far superior."

One reason is Article 32. This provision of the Uniform Code of Military Justice mandates a preliminary hearing before a general court-martial. The process is roughly equivalent to a grand jury hearing-but one at which the accused and his or her counsel are not only present throughout but are also allowed to cross-examine witnesses and even to call their own. "Compare that," said the ACLU's Sullivan, "to what's going on with Ken Starr's grand jury."

In fact, in the Aviano case, the Article 32 investigator cleared two backseat crew members of charges altogether. He also found that Schweitzer, as the navigator, bore less responsibility than Ashby, the pilot. But the Marine Corps' Atlantic commander, Lt. Gen. Peter Pace, ordered both men tried on the severest charges.

Pace had every right. He is the "convening authority" of this court-martial, the commander who's assigned sole responsibility to determine charges-and to pick a panel of officers to try the cases. "Now, in practice," Lederer cautioned, "we do not have rigged juries. [But] the fact that the commander who is functioning as a prosecutor also picks the jury is a matter of grave concern."

"There's so much discretion," Brahms said. "Inappropriate command influence comes about when the [convening authority] deviates from [a] neutral and detached role. . . . Does that happen? Yeah. Does that happen as much as those who don't play in the system believe? No."

"Inappropriate command influence," however, is a real issue in the Aviano case. After all, the commander in chief, President Clinton, issued a statement of regret within hours of the accident. Although the president has chosen his words carefully-"I do not know what the facts are," he said at a Feb. 6 press conference, "and I will not render judgment until I do"-the mere fact of such high-level attention is bound to have an impact on the progress of a case. So do press reports of Italian politicians who have threatened to kick U.S. military forces out of Italy. So do some widely publicized comments by U.S. officials about the crew's culpability.

"Lower commanders feel compelled by statements by senior leaders to bring the case to trial," Spinner said. "Public statements by senior leadership which sound like conclusions of guilt are heard by potential court members."

The problem goes beyond the kind of jury-pool contamination that occurs in high-profile civilian cases. The entire military ethic, by necessity, is founded on deference to superiors-and on sacrificing the individual for the greater good. Having left the military, civilian lawyers can understand that ethos without being bound by it.

That informed independence makes them uniquely suited to combat command influence, and both Beck and Spinner pledged that this issue will receive their close attention. "We have to go do the legwork," Spinner said. "If we think that an issue is there after we've conducted our interviews and our discovery, then certainly we will pursue it"-probably through a pretrial motion to dismiss the charges.

"It's extremely easy to make a charge of command influence," Fidell of the military justice institute noted. "Proving it is another matter."

Spinner filed a motion for dismissal in an earlier high-profile case he described as "very similar" to Aviano-the trial of Capt. Jim Wang, a radar officer accused of letting two Air Force fighters mistakenly shoot down two American Blackhawk helicopters over Iraq in 1994. That motion failed.

In the end, however, Wang was acquitted. Capt. Ashby will be hoping that Spinner can pull another such long-shot rescue this time.