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