Wednesday, August 29, 2007
Tuesday, August 28, 2007
I hate to trot out the old Alice in Wonderland woodcut again, but the Brazilian criminal court in which the two American pilots are now being tried has taken us, once again, down the rabbit hole.
As reported here previously, the charge that the pilots face (as trumped-up as it is), is not an extradictable one under the applicable U.S.-Brazil treaty, because it does not allege intent.
Nevertheless, Judge Murilo Mendes of the federal court in Sinop, a regional center on the edge of the Amazon jungle over which the Sept. 29 mid-air collision occurred, is insisting that the two pilots come to Brazil to testify, rather than testifying in depositions in the United States, as allowed by the treaty.
The jurist's reasoning: A request to avoid coming to Brazil (where the two Americans were held without charge for over two months after the crash in an atmosphere of loud anti-Americanism and politicization of the accident) is an attempt "to revert the natural order of things. The defendant should come to the judge, and not the judge to the defendant."
Well, so much for international treaties, which must of course bow to some Brazilian regional judge's ad-hoc argument invoking "the natural order of things."
Meanwhile, here's another flash from down the rabbit hole:
Claudio Pimentel, a Brazilian lawyer representing the families of some of the 154 who were killed in a multi-million-dollar civil suit against the Americans is involved in the criminal trial as an assistant to the prosecution.
And he's even allowed to make pronouncements that the defendants are, of course, guilty. (Why would they be on trial if they were not? And how else could money be made?)
What's more, the civil suit lawyer/assistant to the prosecution is loudly calling for the "preventive arrest" of the American pilots (an arrest that could only be legally accomplished, of course, if the pilots were to come to Brazil as defendants seeking a fair trial. As I said, welcome down the rabbit hole).
The newspaper Diario de Cuiaba (translation by Richard Pedicini in Sao Paulo), has the civil-suit lawyer/assistant to the prosecution accusing the pilots of "disrespect for the families and the Brazilian courts."
From relatives: "the absence of the pilots at the [trial's first day] was a demonstration of carelessness with the fact." And, "They are afraid to face the court, which will bring to light their blame."
Lawyers for the American pilots are appealing the judge's decision that they must come to Brazil to defend themselves. The Brazilian judge has been assured that, in the United States, he would be free to conduct questioning as he sees fit.
[A personal note: Now that emotions are heating up again with the trial under way, I'm back in the gun-sights of various lackeys in the Brazilian media -- where journalism traditionally reflects, and genuflects to, entrenched power and money, and where there is a lack of tradition of independence.
As the only eyewitness who has been free to write openly about this tragedy (the other six survivors being constrained by various legalities), I've done so, with conviction, since day one. But I've done it as an independent journalist, reporting from here, on my own personal blog -- which is widely read, and parsed, by interested parties in Brazil.
Certain Brazilian reporters and politicians, reflecting the weird xenophobia of Brazil's chattering classes, find it politically expedient to misidentify my affiliations. They do this willfully and dishonestly.
[Appended Aug. 30: It has been pointed out to me that the Brazilian media in question also act without regard to the perils of libel (the laws of which are clear in Brazil) -- specifically on the matters of willful negligence, reckless disregard for the truth, a refusal to correct egregious errors, and a disregard of damage to reputation caused by deliberately repeating falsehoods.]
Anyway, let's be clear (to the extent that clarity is permitted to exist in a poisoned atmosphere):
This is a totally independent blog produced by a freelance writer who answers to no one but himself. I write it because I was there, because I know what happened, and because it is my duty to bear witness.
It says a lot about how thin-skinned and insecure certain elements among the powerful are in Brazil, that they get so emotionally upset about a mere independent blogger's reporting on what they're up to.]
Saturday, August 25, 2007
It's been nearly 11 months since the mid-air collision that killed 154 over the Amazon, and the trumped-up criminal case against the American pilots is moving forward.
A Brazilian criminal court was scheduled to begin proceedings on Monday in Sinop, a regional city in Mato Grosso. Mato Grosso is the state where the Gol Airlines 737 plunged into the jungle after colliding with the American Legacy 600 business jet on Sept. 29. Both planes were at 37,000 feet on courses set by air traffic control.
The judge ordered that the American pilots appear in court to testify. Through their lawyers, the pilots (undoubtedly mindful that they were detained without charge in Brazil for more than two months after the crash) have said no, they'll testify under oath in the United States instead, as is their right under a U.S.-Brazil treaty.
The judge denied that motion and rescheduled the hearing for Tuesday. [For details and a transcript of the judge's decision, see the end of this post].
[Update Aug. 26: "We will urge him tomorrow to reconsider and otherwise appeal," Joel R. Weiss, a lawyer for the pilots in the United States said Sunday.]
The following is not in dispute: Under the applicable treaty between the Unites States and Brazil, the charge against the pilots, which does not claim criminal intent, is not an extradictable one.
But why not just go to Brazil and testify voluntarily as a show of good faith?
Because experience has shown that the Brazilian system has been untrustworthy in this case.
I fully understand the pilots' wishes to avoid placing themselves in physical jeopardy in Brazil again. Remember, they were detained without charge for more than two months after the crash -- in an atmosphere of ugly anti-American sentiment and recrimination.
From my perspective, the Brazilian police, military and courts exhibited bad faith when they politicized and criminalized this accident against all practices of international aviation investigations. In my opinion, they continue to show bad faith, as evidenced by the fact that the criminal charge against the pilots is largely supported by assertions that have already been shown to be false.
Following a weird 36 hours of custody and interrogation myself after the seven of us on the Legacy inexplicably survived the crash, I know that the pilots have good reason to stay out of Brazil, where the move to scapegoat them for the crash (with four air traffic controllers later tossed in for cover) has been blatant and persistent.
From the BBC Brazil:Bruno Garcez
In a dispatch sent to federal judge Murilo Mendes, responsible for the case, the defense asked that they be heard in the
''They are in the
The lawyer for the families [of those killed on the Gol Airlines 737] affirmed that the decision by the two pilots "is very disappointing". ''They frequently say that they have no responsibility for the accident. And affirmed that they were falsely accused in
The Brazilian media have largely stood down from shrill accusations against the Americans, and the press now at least grudgingly reflects the facts – not any longer in dispute – that air traffic control mistakenly had both planes at 37,000 feet, and that a series of egregious errors occurred on the ground during the 55 minutes preceding the collision.
I say "wholesale." Don't miss the one wonderful comment from a deluded soul who insists that I am being paid to hide evidence and provide "false testimony," for which I will be prosecuted.
(Uh, no, Skippy, you're barking up the wrong tree there. From day one, this blog has been done strictly pro-bono, and strictly on my own. Hey, I was just a working stiff on a freelance magazine assignment, minding his own business one afternoon last September when Brazilian air traffic control suddenly put me in a mid-air collision at 37,000 feet over the damn Amazon that almost got me and six others killed, and did get 154 passengers on the 737 tragically killed. Given that I've been a working journalist for 37 years, it shouldn't be hard to understand why I've been somewhat motivated on the topic.)
The major unanswered question continues to be whether the Legacy's transponder – an avionics unit that also triggers the anti-collision alert – was inadvertently turned off or put into standby by the pilots, perhaps with a slip of the foot on a footrest near the place where the unit is housed.
There also are assertions, made by ExcelAire, the Long Island charter company that had taken delivery of the Legacy on the day of the accident, that subsequent investigations indicate that the Honeywell transponder unit installed in the brand-new $25 million Legacy was not new and had, in fact, been previously repaired, unbeknownst to ExcelAire. To my knowledge, neither Honeywell nor Embraer, the manufacturer of the Legacy, has refuted these claims. If they do so, I will be happy to prominently publish those statements here.
The criminal charge against the pilots is that they negligently exposed an aircraft to danger with death as an aggravating factor. The accusation specifies three rationale underlying the charge: Failure to follow the written flight plan; negligently switching off the transponder; and failure to maintain communication.
No one who is aware of the facts in this case gives credence to the assertion that the pilots failed to follow the written flight plan, since that flight plan was clearly superseded (as flight plans routinely are) by direct instructions by air traffic control to maintain 37,000 feet to Manaus. Likewise, the assertion that the pilots failed to maintain communication is specious, as shown by the cockpit tape recorder evidence. It's even more absurd given the now-acknowledged fact that the air space in question is infamous among world pilots and air-traffic controllers alike for being riddled with radio and radar blind zones.
As to the transponder: That the transponder was not working properly is not in dispute, though no one has shown any evidence yet as to why. In fact, air traffic control in
In the crash scenario, a transponder and its anti-collision system would have been the last possible chance to avoid the collision that had already been set in motion.
Richard Pedicini, our correspondent, who has been diligently following the case from Sao Paulo, writes that it’s now generally conceded among journalists covering the case that “in fact the pilots were at the altitude authorized and instructed by ATC, and that ATC made numerous and repeated errors and omissions.”
He adds, ”I think that at this stage you'll find few serious journalists who are unaware that in fact the Legacy was clearly authorized to be at 37,000 feet all the way to Manaus. However, they conveyed that to their readers or viewers far less emphatically or persuasively than they early conveyed [the assertion] that the pilots were at the wrong altitude.”
Folha on line
Legacy pilots refuse to testify in
Lepore and Paladino do only accept to inquiry in the USA
Mato-Grosso Judge denies the motion and maintains the hearing
In a petition sent by fax at the end of this Thursday (23), the North Americans', Joseph Lepore and Jan Paladino, lawyers informed the Federal Justice that they will not attend the hearing scheduled for Monday (27), at the judiciary district of Sinop (MT). Lepore and Paladino are the pilots of the Legacy corporate jet involved in a midair collision with a Boeing of the Air Company, Gol, on September 29th , 2006. As a consequence of the collision, the Boeing plunged into the Mato Grosso rainforest, killing all passengers and crew, a total number of 154.
The pilots are defendants in a criminal lawsuit in Sinop, after investigations by the Federal Police and denounce by the Public Ministry. They had been notified by the Federal Judge Murilo Mendes. The pilots' lawyers had made an official request, addressed to the Judge, asking permission for them to testify in the
On this Thursday afternoon (23), Judge Murilo rejected the petition. He demanded that Lepore and Paladino present themselves next Monday, in accordance with his last month's notification. As a result of that decision, the pilots lawyers informed, by fax, that they would not be present at the hearing. Even so the judge maintained it.
Murilo Mendes announced that, on the scheduled hour for the hearing, he will decide which procedure will be adopted, should the pilots not show up. Paladino and Lepore were accused based on article 261 of the Penal Codex. The penalty ranges from two to five years of imprisonment for defendants of "exposing to aircraft or embarkation to danger, or perform any action tending to impede or difficult maritime, fluvial or aerial navigation".
Investigations by the Federal Police concluded that the North American pilots acted with "negligence" and "irresponsibility" at the moment they were piloting the Legacy. According to the inquiry, which swells the pages of the judicial lawsuit, they disconnected the anti-collision device, transponder of the corporate jet.
In a petition to judge Murilo Mendes, Lepore and Paladino made reference to an agreement between
The judge of Sinop denied the request with base on a decision by the Superior Court of Justice (STJ), related by minister Félix Fischer. It says that the agreement between
Thursday, August 23, 2007
Wednesday, August 15, 2007
"WHAT JAN PALADINO AND JOE LEPORE KNEW WHEN THEY TOOK
OFF ON SEPTEMBER 29 WAS THAT AIR TRAFFIC CONTROL HAD
CHANGED THEIR WRITTEN FLIGHT PLAN., AND CLEARED THEM TO FLIGHT
LEVEL 370 TO
WHEN THEY CHECKED IN AT
BECAUSE THEY WERE TOLD, THAT EVERYTHING WAS FINE.
BUT EVERYTHING WAS NOT FINE. WHAT JAN AND JOE DIDN'T
KNOW AND COULDN'T KNOW WAS THIS:
FIRST, AN AIR TRAFFIC CONTROLLER MONITORING THEM AT
SOME UNKNOWN REASON HE CHANGED THE DATA STRIP TO READ "FL
360 = FL 360." HE THEN WENT OFF DUTY AFTER ERRONEOUSLY
INFORMING HIS RELIEF AND THE AIR TRAFFIC CONTROL SYSTEM THAT
THE LEGACY WAS AT 36,000 FEET AND EVERYTHING WAS JUST FINE.
THE SECOND THING JAN AND JOE DIDN'T KNOW AND WEREN'T
TOLD WAS THAT AIR TRAFFIC CONTROL'S SCREENS HAD NO
TRANSPONDER RETURN ON THEM FOR 55 MINUTES; AND HAD DONE
NOTHING IN RESPONSE TO THAT.
THE THIRD THING THEY DIDN'T KNOW WAS THAT THEY WERE
ENTERING WHAT BRAZILIAN AIR TRAFFIC CONTROLLERS HAVE
DESCRIBED AS A "DEAF, DUMB AND BLIND AREA" WHEREIN RADIO AND
RADAR ARE COMPROMISED.
FINALLY, THEY CRITICALLY AND TRAGICALLY DIDN'T KNOW THAT
AIR TRAFFIC CONTROL HAD CHANGED THE CLEARANCE OF A GOL 7371)HEADING THEIR WAY, FROM FLIGHT LEVEL 4 .0 TO 370.
THE TWO AIRCRAFT SUFFERED A GLANCING COLLISION, SO LIMITED
THAT NO ONE ON THE LEGACY KNEW JUST WHAT HAD HAPPENED. THEY
WERE ABLE TO MAKE AN EMERGENCY LANDING AT CACHIMBO
MILITARY BASE. UNBEKNOWNST TO THEM, THE GOL 737 HAD GONE
DOWN. HERE IS WHAT PASSENGER AND JOURNALIST JOE SHARKEY SAID
IN AN INTERVIEW:"WE NEVER SERIOUSLY SPECULATED THAT WE COULD
HAVE BEEN IN A COLLISION WITH A BIG AIRPLANE. IT
WAS SIMPLY AN IMPOSSIBILITY, GIVEN THE FACT THAT
WE SURVIVED. ABOUT THREE HOURS LATER, IN A
DINING HALL, WE DID LEARN THE TRUTH - THAT A 737
HAD GONE DOWN AT THE SAME SPOT. WE STOOD FOR A
MOMENT OF PRAYER. THERE WAS SOBBING. THE
PILOTS WERE DEVASTATED. I'VE NEVER SEEN TWO
MORE ANGUISHED MEN."
WHAT HAPPENED NEXT? JAN AND JOE HAD THEIR PASSPORTS
TAKEN AND WERE TOLD, "DON'T
DETAINED WAS UNLAWFUL AND THEY COULD LEAVE.
AND NEXT? THEY WERE INDICTED FOR THE CRIMINALLY
NEGLIGENT DESTRUCTION OF AN AIRCRAFT, CAUSING DEATH. THEY ARE
NOW FACING TRIAL AND POTENTIAL IMPRISONMENT. ON THESE FACTS.
HERE IS WHAT YOU, ALPA, SAID IN A JUNE 8 RELEASE IN
RESPONSE TO THIS INDICTMENT:
"THE THREAT OF CRIMINAL PROSECUTION THWARTS
INFORMATION GATHERING AND DATA SHARING, WHICH
FORM THE FOUNDATION OF ACCIDENT INVESTIGATION.
EXPOSING PROFESSIONAL AIRMEN TO PROSECUTION
FOR ALLEGED MISTAKES IS MISGUIDED AND
INCOMPATIBLE WITH PREVENTING FUTURE ACCIDENTS.
`THE BRAZILIAN JUDGE'S ACTION ALSO BLATANTLY
DISREGARDS THE INTERNATIONAL GUIDANCE OF ICAO
ANNEX 131 WHICH STATES THAT "THERE SHOULD BE NO
CRIMINAL LIABILITY WITHOUT INTENT TO DO HARM.'
THE BRAZILIAN JUSTICE SYSTEM IS NOT ACTING IN ITS
COUNTRY'S BEST INTERESTS IF IT FAILS TO RESPECT
INTERNATIONAL PRINCIPLES AGREED TO BY NATIONS
AROUND THE GLOBE."
ONE CAN LOOK AT THE INCIDENTS AND REVELATIONS ABOUT
AIR SAFETY SINCE THEN AND SAY: HOW PROPHETIC; AND HOW VERY
AS TO JAN AND JOE, THE PERSONAL COST OF CRIMINALIZATION IS
GREAT. IT INVOLVES LOST SLEEP OVER THIS PROSECUTION, INCLUDING
ON THE OTHER HAND, THEY HAVE HAD SOME TREMENDOUS
SUPPORT: FROM EXCELAIRE, THEIR EMPLOYER, AND FROM THE AIRSAFETY AND PILOTS ORGANIZATIONS, NOTABLY YOURS.
YOUR SUPPORT IS
CRITICAL, AND AT TIMES RISKY woRK. AND AS TO THIS TREND OFCRIMINALIZATION, YOU ARE ALL IN THIS TOGETHER.
THE POET, JOHN DONNE, SAID, "NO MAN IS AN
YOU MIGHT SIMPLY LOOK AT JAN AND JOE AND SAY, ``THERE BUT FOR
THE GRACE OF GOD GO I."
ON BEHALF OF JAN AND JOE, I EXPRESS THEIR GRATITUDE FOR
YOUR CONTINUING SUPPORT. THANK YOU.###
Wednesday, August 1, 2007
"The National Syndicate of Aeronauts (SNA) declares that it is going to the Minister of Justice to ask for the removal of police institutions from the investigation into the accident with the TAM airplane.
The experience with the criminalization of the GOL accident, in which Air Traffic Controllers were indicted for an intentional crime, is considered an absurdity by the SNA, which repudiates that situation and alerts society to the possibility of our having Aviation Accident Final Reports deficiently or incompletely produced because of the interference of institutions foreign to the CENIPA investigation.
We counsel a completely independent organization for the investigation of air traffic control accidents, assisting the Presidency of the Republic, so that the country can be in harmony with what is foreseen in the 1944 Chicago Convention, to which Brazil is a signatory, and which regulates, through Annex 13 of ICAO - International Civil Aviation Organization, the investigation of accidents and the protection of Flight Safety information, this last situation recommended by Appendix E of the cited annex.
The SNA calls society's attention to the need to safeguard the work of the CENIPA Investigative Commission from any sort of external pressure, to allow the discovery of the real factors that contributed to the GOL and TAM accidents, since it is this commission's responsibility to issue safety recommendations, preventive instruments that can avoid other identical accidents.
The National Syndicate of Aeronauts also warns of the current use of crew members at the limits of Professional Regulation because of the airlines' new management model which has more condensed route networks and uses aircraft on the order of 14 hours per day. It was emphasized that obeying the regulations covering aeronauts is an import item in maintaining Operational Safety.
As a final point, the syndicate declares that it is in favor of construction work at