Brazil Demands Pilots Return

Above: American pilots Joe Lepore (l) and Jan Paladino, in Brazil shortly after the accident.

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.

An update:

From the BBC Brazil:

Bruno Garcez

Washington - The lawyer for the two pilots of the Legacy jet that collided with a Gol airlines Boeing on September 29, 2006, provoking the second worst aviation accident in the Brazilian history, blamed the " aviation chaos" in the country for the accident.

"Brazil's aviation safety system in chaos. There are radars that fail, planes that are sent back, the minister of Defense lost his post, the air traffic controllers went on strike and are overworked. The air traffic control system put the two planes on a collision course. It's that simple", said Joel R. Weiss [the attorney who represents the pilots in the United States]… .

''They are in the United States, where they live and work. According to a legal treaty between the two countries, they can testify from here. The treaty does not permit that they be obliged to return to Brazil. They are not trying to avoid testifying,” [Weiss said] …

In a dispatch sent to federal judge Murilo Mendes, responsible for the case, the defense asked that they be heard in the United States - but the judge denied the request. Reacting to the decision, Lepore and Paladino advised, through their lawyers, that they would not appear at the hearing. If Lepore and Paladino in fact do not appear, the judge should decide what procedure to adopt afterwards. …[Weiss] affirmed that the lawyer for the two pilots in Brazil, Theo Dias, will appear at the audience in Sinop, on Monday and "will ask the judges to reconsider their position and accept that they testify from the United States." …

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 Brazil. If that is the case, you'd think that they would not be afraid to come to the country and clear their names", commented Lexi Hazam. …

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MY COMMENTS:

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 "largely." As you can see by this post on Brazzil.com/Brazil Magazine (a news outlet that I actually greatly admire for its dynamic energy and the way it presents a myriad of views and engages its readers), the occasional nitwit is still out there beating the dead horse. However, if you follow the link through the article to the comments, you'll see evidence that the tide has turned, and this nonsense -- that somehow, defenders of the pilots are liars and driven only by the desire to bash Brazil -- simply isn't being swallowed wholesale anymore by the general public.

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 Brasilia was aware of the Legacy’s transponder malfunction for 50 minutes before the collision, and inexplicably failed to warn either plane, both of which were in and out of radio contact in notorious Amazon communications blind zones and radar dead zones that the Brazilian authorities swore for months did not exist.

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.”

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Folha on line

8/24/2007

Legacy pilots refuse to testify in Brazil

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 29^th , 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 USA.

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 Brazil and the USA signed in 2001, called "Agreement of Judiciary Assistance in Criminal Matter". They specifically mentioned articles 8 ^th and 10^th.

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 Brazil and the USA has the purpose of facilitating the battle against delicts in both countries. But that it cannot be used as a means of "altering the way by which lawsuit proceedings are performed in the State territory". It also says that the subpoena and notification will be made in the foreign territory and in accordance with that State's legislation; but the hearing, if determined that it has to take place in Brazil, shall obey the Brazilian norms."

Besides the North American pilots, four flight controllers are defendants in the Mato-Grosso criminal lawsuit: Jomarcelo Fernandes dos Santos, Lucivando Tibúrcio de Alencar, Leandro José Santos de Barros and Felipe Santos dos Reis. They were on duty at the moment of the accident and have been notified to testify next Tuesday (28).

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JUDGE'S DECISION DENYING PILOTS RIGHT TO TESTIFY IN U.S.
(Translation courtesy of Richard Pedicini in Sao Paulo)

http://conjur.estadao.com.br/static/text/58850,1

Hearing Impossible
(Excerpted from O Estado de S. Paulo)
By Priscyla Costa

American pilots Joseph Lepore and Jean Paul Paladino, indicted as responsible for the accident between the Legacy jet and the Gol Boeing ... are unlikely to be heard by the courts. The federal judge of Sinop (Mato Grosso), Murilo Mendes, who is taking care of the case, denied the request of the pilots who want to be heard in the United States, where they live. No one believes that they will spontaneously come to Brazil to give testimony.

[In denying the motion, the judge said] ... "Citation and serving can be performed in foreign territory, according to the legislation of that State, but the interrogation, if it is determined that it should be undertaken in Brazil, will follow Brazilian rules," [he said].

On of the arguments of the American pilots' defense is that Decree 3,810/01, the Mutual Assistance Agreement in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the United States of America, authorized the Brazilian judge to undertake the interrogation in the USA and that, according to the Decree, the foreigner is not obliged to come to Brazil to testify.

Murilo Mendes explained that in foreign territory, a Brazilian judge, as a rule, does not have jurisdiction. So much so that the treaty, when it speaks of the actions of the Brazilian authority who is in the United States hearing some person, affirms that the responding State will 'permit' that these persons present questions. ...

[To follow the treaty and allow the pilots to testify outside his presence, the jurist decided],
... the Brazilian judge who is there, therefore, is not precisely a judge, he would be a 'half-judge', defended Mendes. "A judge without jurisdiction is not a judge. If a Judge needs to ask another (foreigner or not) permission to ask a question it's because he is not invested with any state power at all," he completed. ...

[The pilots and flight controllers were] ... was charged under article 261 of the Criminal Code - placing in danger an embarkation or aircraft, one's own or another's, or engaging in any act with tends to impede or make difficult maritime, river, or aerial navigation. The penalty is from two to five years of prison. With the aggravation of the deaths of the passengers on the Gol airplane, the penalty can reach six years. ...

Text of the Judge's Decision

JUDICIAL POWER

FEDERAL COURT OF MATO GROSSO

JUDICIAL SUBSECTION OF SINOP

JUDGE OF THE SINGLE COURTROOM

TRIAL Nº: 2007.36.03.002400-5

CLASS: 13101 – CRIMINAL TRIAL

AUTHOR: PUBLIC PROSECUTORS' OFFICE

DEFENDANTS: JOMARCELO FERNANDES DOS SANTOS, LUCIVANDO TIBÚRCIO DE ALENCAR, LEANDRO JOSÉ SANTOS DE BARROS, FELIPE SANTOS DOS REIS, JOSEPH LEPORE AND JAN PAUL PALADINO

Joseph Lepore and Jan Paladino, though their regularly appointed defenders, formulate a request in the following terms: "the petitioners request the adoption of the measures necessary for the realization of the questioning of the petitioners in the United States of America, on the terms provided by the agreement for cooperation between the two countries".

This is the report.

The request formulated here by the defenders of the accused foreigners has already, strictly speaking, been considered when the indictment was accepted. Mention was made, on that occasion, of a precedent by the STJ entirely similar to the case which is being considered in the present criminal trial.

This is the essence of the precedent: "The International Agreement under consideration has as its purpose to facilitate the cooperation and the combating of crime by Brazil and the United States of America, when it is necessary for the practice of acts by one of them in the other's interest. It does not intend, however, to alter the form in which the procedural acts are practiced in the State's territory, so much so that the legislation which performs the act must always be respected. The citation and the serving will be performed, in foreign territory, according the the legislation of that State; but the interrogation, if it is determined that it should be undertaken in Brazil, will follow Brazilian rules" (HC 63.350, referee Ministro Félix Fischer).

To ground its request, the defense invokes the dispositions contained in articles VIII and X of Decree nº 3.810, of February 21, 2001 (Mutual Assistance Agreement in Criminal Matters between the Government of the Federative Republic of Brazil and the Government of the United States of America).

The reference to the second disposition (art. X) was perhaps made with the idea of saying (this is not made very clear in the petition) that provision for the citation of the North American citizens has the nature of a mere "invitation", without the procedural effects carried by a motion for citation. This, however, is not the best understanding. What the Treaty says, in article X, is that the requesting state asks for the presence of the person and the requested state "invites" him to appear, as if wanting to emphasize that the State of origin of the citizen whose presence is requested overseas does not oblige him to attend to the call. But this in nothing removes the legal character of the act coming from the requesting State: if the act is a citation, it continues to be a citation even if, in the requested state, only "an invitation" is made to the defendant; if it is an intimation, it continues to be an intimation; if it is a notification, it continues to be a notification and so forth.

The citation of the defendants, therefore, is in no way harmed by the manner in which, in the United States, they were served. It matters little if the American authority charges with the serving of the papers made an appeal or simply presented the defendants with a judicial writ. What matters is that, for the respective procedural effects, is the following: the accused were called to appear at a judicial hearing to answer to the terms of the criminal charge proposed by the Federal Prosecutor's Office. This act has a name; it's called a citation. "Citation is the calling of the defendant to the judge, giving him knowledge of the bringing of a legal action, charging him with a criminal infraction, as well as offering him the opportunity to defend himself personally through a technical defense" (NUCCI. Guilherme de Souza. Commented Code of Criminal Procedure [Código de Processo Penal Comentado]. São Paulo: Editora Revista dos Tribunais, p. 613).

O inciso VIII do Tratado de Cooperação é mencionado para dizer que o juiz brasileiro poderá realizar o interrogatório nos EUA. Eis o texto: "O Estado requerido permitirá a presença de pessoas indicadas na solicitação, no decorrer do atendimento à solicitação, e permitirá que essas pessoas apresentem perguntas a serem feitas à pessoa que dará o testemunho ou apresentará as provas".

Here it is impossible not to make a defense of national jurisdiction. What the defendants intend, with this request, is to be heard in their territory. It happens that, in foreign territory, a Brazilian judge, as a rule, does not have jurisdiction. It is not without motive that the treaty, on treating the activity of the Brazilian authority who is in the United States of America hearing someone, affirms that the responding State will 'permit' that these persons present questions.

Who will permit? Certainly an authority of the foreign state (in this case, the USA). The Brazilian authority, therefore, should ask permission of the American judge so that he can ask the questions that he considers convenient to put to the defendants. If the case if one of mere "permission", obviously the request can be denied (the American authority can, strictly, tell the Brazilian judge "your question is denied"). The Brazilian judge who is there, therefore, would not be precisely a judge, he would be a '"half-judge", excusing the clarity. A judge without jurisdiction is not a judge. If a Judge needs to ask another (foreigner or not) permission to ask a question it's because he is not invested with any state power at all", he completed.

There is still another consideration. Article 368 of the Code of Criminal Procedure, which foresees the citation of an accused who is in a known place overseas, does not say, at any moment, that the interrogation will not be performed in Brazil. The legal disposition only disciplines the form in which the suspension of the statute of limitations is counted, 'until its fulfillment'. The expression 'fulfillment' refers to the performance of the citation overseas; not to the performance of the interrogation. This is, furthermore, the line of reasoning which guided the decision of the Superior Tribunal of Justice, that is referred to.

The realization of an interrogation by means of "video conference", for its part, also is shown to not be possible. The second Division of the Supreme Federal Tribunal recently decided on the unconstitutionality of this procedure. In the majority decision the eminent Justice Cezar Peluso left the following specified: "When the normal exercise of self-defense is impeded, by the act of adopting a procedure (video conference) not even provided for in law, a restriction to criminal defense has been made, while incompatible with the regulations contained in art. 5º, LV, of the Constitution of the Republic, which leads to the absolute nullity of the trial...." (HC 88.914-0-SP).

The defense of the accused Americans has just informed the judge (in a petition sent by fax) that they will not appear for the hearing. In light of this information, contact has already been established with the illustrious President of the City Council, alderman Sinéia Abreu, releasing the Legislative House to operate normally on Monday. There remain, for Tuesday (28/08/2007), the interrogations of the Brazilians accused. On Monday, I will deliberate over the absence, at the act of interrogation, of Messrs. Joseph Lepore and Jan Paul Paladino.

I deny, therefore, grounded on these terms, the request made by the accused Joseph Lepore and Jan Paladino.

Sinop/MT, August 24, 2007.

MURILO MENDES

Substitute Federal Judge, with full jurisdiction in the single courtroom of Sinop-MT

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