On 15 August 2008, CAAF docketed Capt Ashby's petition for grant of review. United States v. Ashby, __ M.J. ___, No. 08-0770/MC (C.A.A.F. Aug. 15, 2008). CAAF then extended the supp filing deadline to 29 September. United States v. Ashby, __ M.J. ___, No. 08-0770/MC (C.A.A.F. Sept. 16, 2008). And then things got interesting.
On Monday, CAAF granted the defense's motion to file a brief that doesn't comply with CAAF Rule 24(b), which is the page limitation rule. United States v. Ashby, __ M.J. ___, No. 08-0770/MC (C.A.A.F. Nov. 24, 2008). The order granting that motion included this footnote:
Chief Judge Andrew S. Effron, Judge James E. Baker, and Judge Margaret A. Ryan have recused themselves from this case and did not participate in this order. Senior Judge Robinson O. Everett, Senior Judge Walter T. Cox, III, and Senior Judge H.F. "Sparky" Gierke have been called upon by Acting Chief Judge Charles E. "Chip" Erdmann and consented to participate in this case pursuant to Article 142(e)(1)(A)(iii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(iii)(2000).Id. at *.
It's easy to figure out why Judges Baker and Ryan would have recused themselves. In February 1998, at the time of the aircraft mishap, Judge Baker was serving as Legal Adviser to the National Security Council. It wouldn't be at all surprising for his official duties to encompass responding to an incident in which a U.S. military airplane caused the deaths of 20 Europeans in Italy. Judge Ryan served aide de camp to Marine Corps Commandant General Charles C. Krulak either at the time of the mishap or shortly thereafter. In that position, she almost certainly would have dealt with the disaster's aftermath as part of her official duties. What isn't apparent to me is why Chief Judge Effron would recuse himself. He became a CAAF judge in August 1996, a year-and-a-half before the mishap, so he wouldn't have dealt with the incident when he was on the Hill. The Ashby order doesn't state his reason for recusal.
With Chief Judge Effron and Judge Baker recused, Judge Erdmann was the senior remaining judge. Article 142(e) provided him with a means to restock the bench. Article 142(e) of the UCMJ provides, in relevant part, that the "chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court . . . in any case in which a judge of the court recuses himself." Article 142(f) allows the CAAF Chief Judge to ask the Chief Justice of the United States to designate an Article III court of appeals or district court judge to sit in for a recused judge, but only if no CAAF senior judges are available.
So it appears that Judge Erdmann had carte blanche to pick three judges from among the roster of retired CAAF judges. And he certainly picked a Hall of Fame lineup. I've had the pleasure of arguing many times in front of all three (in addition to the pleasure of working for Senior Judge Gierke). If the Ashby case is granted and then orally argued, the two counsel who get to do it should savor the now-rare opportunity to appear before these distinguished jurists.
In addition to the three senior judges Judge Erdmann selected, there are three additional CAAF senior judges: Senior Judge William H. Darden, Senior Judge Eugene R. Sullivan, and Senior Judge Susan J. Crawford. As long as she remains in her current position as the military commission system's convening authority, it would seem unlikely that Senior Judge Crawford would be selected to sit with the court.