Judge to Rule in Italian Tragedy Coverage

A CBS lawyer told a military judge Thursday in Camp Lejeune, N.C., that there was no good reason for prosecutors to seek notes and tapes from a yet-to-be-aired “60 Minutes” segment about a ski gondola tragedy in Italy.

But a prosecutor argued that the interview with the pilot of the Marine jet that snapped the gondola cable Feb. 3, sending 20 people plunging to their deaths, could shed light on what happened.

The judge said he would rule on the motions by CBS and Rolling Stone magazine to quash prosecutors’ subpoenas for notes and tapes sometime after the “60 Minutes” segment airs Jan. 24. Rolling Stone’s story ran Dec. 10.

Prosecutors especially want videotape recorded when the pilot, Capt. Richard Ashby of Mission Viejo, retraced the fatal flight Oct. 26 in a helicopter with CBS correspondent Mike Wallace.

“In the ’60 Minutes’ case, what more probative evidence is there than Ashby flying down the route, telling . . . how he maneuvered the jet in the air?” said Maj. Daniel Daugherty, a prosecutor. “That information is not available anywhere else.”

Daugherty said CBS and Rolling Stone, which has off-the-record notes from its interview with Ashby, were duty-bound to help prosecutors determine why the tragedy occurred.

Prosecutors want to use the material at the courts-martial scheduled in February for Ashby, 31, pilot of the EA-6B Prowler, and Capt. Joseph Schweitzer, 31, the jet’s navigator, from Westbury, N.Y.

The radar-jamming jet struck the ski gondola cable at 621 mph while flying at 370 feet, well below the 1,000-foot minimum that had been set for military training flights. Prosecutors contend the pilot flew recklessly, too low and too fast.

Ashby and Schweitzer each are charged with 20 counts of involuntary manslaughter, 20 counts of negligent homicide, and charges including dereliction of duty and destroying property.

The judge, Lt. Col. Robert Nunley, said he might require CBS and Rolling Stone to submit the notes and tapes to him for an “in camera” review, meaning he would decide what prosecutors should see.

Daugherty, however, said he would rather not get any of the materials at all than have the judge screen them and decide which were relevant.

Floyd Abrams, a lawyer representing CBS, said the network most likely would appeal if the judge ordered the network to turn over the notes and tapes without first reviewing the material. That would discourage potential news sources from approaching the media in the future, Abrams said.

“It’s not made-up concerns that led CBS to resist this subpoena,” he said. “It is a strongly felt sense that the Captain Ashbys of the world won’t talk to them if information immediately becomes available to the government. He didn’t want to talk to the government; he wanted to talk to CBS, and we feel he had a right to do so.”