Case Closed. Now Call the Witnesses!

You really didn't think we were going to climb up out of the Rabbit Hole now that the Brazilian military has concluded that the American pilots could not have inadvertently knocked the Legacy transponder off-line with a wayward foot or a laptop edge?

That just about eliminates the case, such as it was, against the pilots for the accident, which every single aviation authority in the world, the world beyond the Rabbit Hole, says should never, ever have been criminalized.

Hoooo no.

The federal court in Sinop, the godforsaken outpost in the Amazon where the trial has been under way for months, has denied a habeas corpus petition by the pilots, Joe Lepore and Jan Paladino.

Wot? And let them see the particulars of this mysterious case against them?! What do they think they are, innocent?

A judge also ruled that Lepore and Paladino -- who were detained without charge in Brazil for over two months after the crash, until the police finally cobbled together a charge hours after a judge ordered their passports returned so they could leave the country -- must appear before the court in Sinop. This was a denial of a petition by the pilots' attorneys that they testify before a Brazilian judge who would come to the U.S. and be free to pursue any line of questioning deemed necessary.

The new ruling says that "it is not reasonable that the judge who is holding the criminal trial[has] to go to another country for the pilots to be heard ... ."

A Brazilian lawyer for the pilots, Theodomiro Dias Neto, said that under applicable agreements between the U.S. and Brazil, the pilots have the right to be heard in the U.S.

"Based on the interpretation of the Code of Criminal Process and the Legal Assistance Treaty between Brazil and the United States, the American defendants have the right to be interrogated in their country of residence," he said.

There is no extradition treaty between the U.S. and Brazil that could force the pilots to go to Brazil, where they have been continually scapegoated since the collision. That's because the crime alleged (whatever it is, now that the inadvertent kicking of the transponder has disappeared) is defined as "unintentional."

And, I might add from my own personal experience and from that of the pilots' during their two months of being detained without charge, there is no reason to accept the good faith of the Brazilian government. In my opinion, the fix has been in on this case since Day One, and the evidence of that is overwhelming. It would be insanity for the pilots to place themselves in Brazilian custody again.

(And to any of my excitable Brazilian correspondents now rushing to protest once more that the pilots were not "detained" during October through early December of 2006 because they were holed up in a nice hotel in Rio: save it. The fact is, they were not free to leave Brazil, and the threat of an angry mob, easily summoned by a simple phone call from informants planted round the clock in the lobby, prevented them from leaving the hotel.)

Still, a guilty verdict even in absentia would mark the pilots as international fugitives in Brazil and in other countries that do have applicable treaties with Brazil.

Meanwhile, nothing, nothing, has been done to fix the fundamental Brazilian air-traffic safety problems that actually caused the Sept. 29, 2006, crash and a subsequent one that killed 199 in Sao Paulo last July.

Meanwhile, the authorities are still chasing after air traffic controllers -- not for malfeasance in the crash, but for protests that followed the crash. In the months afterward, controllers -- who are military personnel -- staged work stoppages and other protests that caused major chaos in the air traffic system. They were protesting poor working conditions and poor, unsafe equipment, but they were also sending a message that controllers were not about to accept any blame for the Amazon disaster. Some of the worst protests occurred last March. More are expected as the Christmas and wearm-weather holidays approach.

From Zero Hora, translation by Richard Pedicini in Sao Paulo:

FAB suspends controllers for March mutiny

Seven sergeants from Cindacta-1, in Brasilia, and 11 from Cindacta-2, in Curitiba, were suspended and seek to reverse the decision in the Courts before Christmas.

Seven career sergeants at Cindacta-1 (Brasilia) were discharged and another 11 at Cindacta-2 (Curitiba) were suspended by the Air Force due to the indictment for mutiny by the category on March 30.

Besides trying to reverse the situation in the courts, the controllers are asking for a response by the government before Christmas - when the Ministry of Defense will implant a plan to avoid airport chaos. Despite this, there is no threat of new protests.

"It's an act which seeks to undermine and disorganize the controllers who are on the job. Another resurgence is happening", said lawyer Roberto Sobral, who represents the controllers' association. "We need to have a response before Christmas", he added.

Of those discharged, one is detained for indiscipline and another belongs to the group involved in the Flight 1907 accident, according to the controllers' lawyers. They affirm that 10 controllers are in this situation and that they will appeal. The FAB said that there are seven and that the procedure of evaluation for reenlistment is standard, done annually for military personnel with less that 10 years of service (without stability).

In Curitiba, the controllers were suspended. For Sobral, the government is being "omiss" and "complacent" with a potential danger situation, because the new sergeants who will substitute them do not have sufficient training and experience.

On March 30, close to 200 professionals crossed their arms and, supported by controllers from several States, practically paralyzed the country's air space, causing delays at airports.

According to the Military Criminal Code, mutiny is a meeting of members of the military with the intention of acting against superior orders. It is considered a crime against authority. It differs from revolt because it involves unarmed military personnel.

What set off the controllers' strike on March 30 was the decision to transfer one of the category's leaders, Edleuzo Cavalcante, from Cindacta-1, in Brasilia, to a detachment in Santa Maria. the Air Force Commandant, Juniti Saito, decided to arrest 18 mutineers. With president Lula overseas and in the midst of a command crisis, the airport had a day of unprecedented delays.

***

Roberto Sobral, a lawyer for the controllers union, sent controllers the following letter, addressing the controllers' current push to remove themselves from military control and other matters:

"Dear Friends,

I have reasons to alert you against a possible strategy that is being adopted by the Air Force Command to destabilize the imminent process of demilitarization.

They have decided to make the persecutions more severe until they bring the controllers' category to lose control, who knows, an attempt at paralyzation.

If this happens the population, the press, the government, will all turn against us and we'll we'll be back to zero, losing all the gains we've already produced: the favorable report in the CPI, the adhesion of important personalities of the government itself, etc.

Demilitarization is inevitable. They know it, but they want to delay it as long as they can and this is where the danger lies. Delaying they hope to bring us to mistakes that will allow them to change course.

They are already ready to intervene in any paralyzation movement by us, or a work-to-rule operation. For this they count on a press that is omiss and irresponsible, without mentioning those that sell themselves, the good journalists won't even have space to defend us, in a situation of commotion.

Because of this, it is fundamental that all the leaderships recommend prudence and patience and that they be there on the day set for our meeting, where together we will establish the paths for the victory that is due us. With us are reason and the right.

We will know what to do for rationality to prevail. We are closer than ever to what we intend. I reemphasize the honor I enjoy in working for these great Brazilians that are our ATCs."

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The Legacy Transponder: Case Closed?

The Brazilian Air Force panel still investigating the Sept. 29, 2006 mid-air collision over the Amazon between a Gol 737 and a U.S.-owned Legacy business jet, in which 154 died, has issued a startling conclusion.

There are no indications that the Legacy's transponder was accidentally turned off with an unintentional slip of a pilot's toe off a badly designed footrest in the cockpit, or by one of the Legacy's pilots inadvertently jostling the device with his laptop.

There is, furthermore, no assertion, at least by anyone who isn't a delusional anti-American wack-job, that the pilots deliberately turned off the transponder, which would have been an act of sheer insanity on their part.

(Early on, the excitable former defense minister, Wonderful Waldir Pires, did of course assert just that. Someone showed him a picture of a wildly oscillating reading on a malfunctioning radar screen, which persuaded the poor old gentleman that the Americans obviously turned off the transponder so they could perform undetected aerial loop-d-loops in the Amazonian skies, evidently to "show off" the new airplane to the reporter on board, me -- though that inattentive reporter subsequently and inexplicably (unless he was part of the loop-d-loop coverup conspiracy!) failed to make note of said loop-d-loops in his stories about the crash. Wonderful Waldir has since departed for a much-needed retirement rest to coddle his loop-d-loops in peace.)

Anyway, I direct you once again to a detailed report filed last November by Excelaire, the owner of the Legacy, which argues that the Legacy's transponder had a history of problems and was not "factory fresh" before it was installed in the new Legacy. The .pdf of the report doesn't have page numbers, but the pertinent part is Section 6, titled "Production and Pre-Delivery Problems ..."

Neither Honeywell, the manufacturer of the transponder, nor Embraer, the Brazilian manufacturer of the Legacy, has disputed that report, although neither has addressed it publicly, to my knowledge.

But the Air Force investigation moves us inexorably closer to the conclusion, argued here for over a year, that the collision occurred as a result of a series of things that went terribly wrong, starting with the fact that Brazilian air traffic control, understaffed and saddled with malfunctioning technology, made grave mistakes that put both aircraft on a fatal collision course at 37,000 feet that afternoon.

The transponder issue, and the American pilots' role in it, was secondary: A working transponder, with its tie-in to an aircraft anti-collision alarm, would have been the last safeguard that might (emphasize might) have prevented a collision that was already well set in motion through a series of errors and malfunctions on the ground.

Of course, the history of this sad case has shown that some authorities in Brazil, having made the grave mistake of rushing to criminalize this accident even before the bodies were brought out of the jungle, are absolutely determined to somehow pin blame on the Americans. Don't forget, the basic criminal charge against them is "failing to ensure the safety of Brazilian skies." That covers a whole lotta sky.

The two American pilots are still on trial, in absentia, on those criminal charges, which also stipulate that they were involuntarily responsible for whatever role in the accident they might be found guilty of.

Still, a guilty verdict carries prison sentences. Though the U.S. does not have an extradition agreement on a conviction on unintentional homicide, the pilots, if found guilty, would be considered international fugitives in many countries that do have applicable treaties with Brazil. For a pilot -- one of them still flies internationally -- that could lead to real trouble.

The Brazilian authorities have not yet addressed rampant safety problems in the operation of their military-run air traffic control system.

But as to the American pilots, who have been scapegoated in this tragedy since the day the seven of us fell from the sky onto that forlorn Amazon air strip: If the transponder failed because of manufacturing problems, I have only two words to say:

Case Closed.

Here is the text of the Air Force report, as translated by Richard Pedicini in Sao Paulo:

Flight 1907 – Commission clarifies on transponder


Because of the release of information, on the part of organs of the domestic and international press, on the accidental interruption of transponder transmissions in the case of the Flight 1907 accident, which provoked the non-functioning of the anti-collision system, the Aeronautic Accident Commission of Investigation informs that:


1) Up to now, there are no indications that there occurred an intentional act on the part of the crew of aircraft prefix NX600L in the sense of interrupting the transponder's transmission (STAND BY mode) ;


2) Ergonometic studies, CVR (Cockpit Voice Recorder) data, and reconstructions demonstrate that:


- The interruption of transponder transmissions occurred during a period of silence in the cabin, lasting 1 minute and 43 seconds, while the pilots of aircraft NX600L performed flight planning calculations for the next stage of the trip, with the pilot on the right using a laptop;


- According to the report of the reenactment flight, there is no way that a laptop resting on the lap of the pilot on the right can touch the button on the RMU (Radio Management Unit) control screen twice, in less than 20 seconds, to put the transponder in STAND BY mode;


- There is no way to utilize the footrest during the flight with the seat in the normal piiloting position. It would be necessary to move it back. The movements of the seat positions are registered on the CVR and there is no register of movement (cabin noise) during the period in which the transponder ceases operation;


- The footrests have a protection which impedes a shoe sole from directly contacting the panel;


- If this occurs by an action by the pilot on the left, flexing and contorting his right foot, the buttons reached would be the first two, from top to bottom and on the left side of the RMU control panel, which have as their function the changing of the radio frequencies, and not the fourth button, which would permit changing the transponder mode (if it were touched twice in succession, in an interval of less than 20 seconds);


- Only the pilot on the left can, observing the description in the previous item, place his foot on the left side of the RMU);


- On the CVR, there is a commentary by the pilot on the left recommending not putting feet up in the cabin during the flight.


From all the evidence presented, the Commission reiterates that the conclusions aired by some organizations and press organs, domestic and international, on the use of the laptop or of the "footrest" on the flight in question, do not have any technical support in the work of the Aeronautic Accident Commission of Investigation, which is responsible for the procedure aimed at prevention.

Source: Aeronautic Accident Commission of Investigation / CENIPA

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A Half-Flanagan

You remember Tommy Flanagan (pronounced Fla-NAY-gan), Jon Lovitz’s memorable Saturday Night Live character who was incapable of uttering the truth?

Well, here we see a half-Flanagan, from an interview in the November issue of Airline Business magazine with Richard Lark, the chief financial officer at the Brazilian airline Gol.

(A Gol 737, you will also remember, went down in the Amazon with 154 dead on Sept. 29, 2006, after colliding with a business jet while both aircraft were flying head-on at 37,000 feet under Brazilian air traffic control instructions.)

Said Lark, speaking of the crisis in Brazilian aviation:

“What is happening in Brazil are attempts to find the guilty parties, to initiate criminal proceedings rather than concentrating on discovering the cause of the accident. Once you introduce a blame culture people will start to withhold information. This situation creates a disincentive to find the truth. We have the best safety system along with Canada and the U.S.A., but this now is being questioned, with emotion taking over from rational thought.”

True Fact: “...What is happening in Brazil are attempts to find the guilty parties, to initiate criminal proceedings rather than concentrating on discovering the cause of the accident. Once you introduce a blame culture people will start to withhold information. This situation creates a disincentive to find the truth.”

(An assertion that, by the way, has been made repeatedly in this space for over a year).

Whopper: "... We have the best safety system along with Canada and the U.S.A., but this now is being questioned, with emotion taking over from rational thought.”

Well, let's apply some rational thought to that statement. Let’s see, 154 died in the still-inexplicable Amazon accident (to which Gol, it should be noted, has not yet addressed itself publicly, while the American pilots of the business jet and four low-ranking air traffic controllers are on criminal trial.)

Then in July, another 199 died when a Brazilian Tam airliner crashed at notoriously unsafe Congonhas airport in Sao Paulo.

Then last Sunday, eight people died when a business jet taking off from another airport situated in a crowded urban area of Sao Paulo crashed into a neighborhood – just days after three separate helicopter crashes killed another three people.

“We have the best safety system …”

Yeah, that's the ticket!

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Another Fatal Air Crash in Brazil

Top: Crash site in Sao Paulo, from Estado de S. Paulo.

Bottom: From Folha Online, showing location of the accident near Campo de Marte airport in Sao Paulo.

There was another disaster today in Brazil’s notoriously unsafe aviation system, while authorities do nothing to address fundamental safety issues.

At least eight people were killed when a Learjet 35 crashed into a Sao Paulo neighborhood after taking off from Campo de Marte airport, the main general aviation airport. The jet, bound for Rio, was operated by an air-taxi company.

Initial reports were that the pilot, co-pilot and six people on the ground were killed.

It was the fourth aviation crash in a week. In three separate helicopters crashes last week, three people were killed and five were injured. In traffic-snarled Sao Paulo, helicopters are often used for routine transport.

The first accident happened Thursday in a suburb of Sao Paulo, where a helicopter carrying four people crashed in a street. A woman and a child were killed and the pilot died later.

About twenty minutes later, another helicopter crashed in another suburb. Its two passengers were not injured.

Two hours later, a third helicopter chopper crashed in Riberao Preto, about 185 miles from Sao Paulo. The three people on the helicopter are in critical condition.

Last July, a Tam Airbus 320 commercial airliner crashed at Sao Paulo’s overcrowded Congonhas Airport, killing 199. Ten months before that, a Brazilian Gol Airlines 737 and an American Legacy 600 business jet collided over the Amazon, killing 154.

Since the Amazon collision 13 months ago, Brazilian authorities have steadfastly maintained that the country’s aviation system is safe, even though international aviation authorities have said it is not.

In the Gol-Legacy crash, Brazilian military and police authorities blamed the two American pilots, who are now being tried in absentia on criminal charges, along with four low-ranking controllers in Brazil’s air-traffic-control system, which is operated by the military. In that crash, both planes were flying on a collision course at 37,000 feet under orders from air traffic control.

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Brazil's Skies: 'If You Had Courage and An Airplane, You Had an Airline'

Our correspondent Richard Pedicini recently attended a seminar on air safety in Brazil. Here is his report:

In Northeast Brazil, aviation workers flock to flight safety seminar

In the Brazilian Northeast, unlike the country as a whole, air taxis are the category of aviation that suffers the most accidents. The "make-do" is dangerous in airplane maintenance. And the improvement of aircraft leaves the human factor ever more prevalent in accidents.

Those are among the lessons of the seminar on flight safety that packed the Infraero auditorium at the Fortaleza airport last Friday night and Saturday morning.

"We are at an extremely delicate moment in Brazilian aviation", said Lieutenant-Colonel Aviator João Carlos Beiniek, at the opening of the event. "There has never been so much said about the safety of flight."

He sees the current moment of chaos in Brazilian civil aviation as part of a transition from one stable situation to another. He cited previous moments in the history of Brazilian aviation. In the 1950s, there were 300 cities with scheduled commercial service. "But there was no regulation. If you had courage and an airplane, you had an airline."

When president Jânio Quadros canceled the aviation fuel subsidy in 1961, only four airlines survived. In the 1970s came the era of regional air transport companies, but only one of the five, TAM, continues operating today.

Col. Beiniek sees a big future for Brazilian aviation, with the potential of reaching a passenger public four times larger than at present. "The United States has 222,000 airplanes, and there's no one between them and Brazil, with its 11,000 aircraft."

Accident prevention

Organized by Seripa II - the Regional Service for Investigation and Prevention of Aeronautic Accidents, created this year - the seminary attracted more than 120 people from Fortaleza and cities across the Brazilian Northeast. The audience included pilots, mechanics, air traffic controllers, and students and others interested in aviation.

The Fortaleza seminar was the first undertaken by the Seripa, and had the declared purpose of spreading the SIPAER doctrine . Elements emphasized were that the investigation of an aeronautic accident has as its only and exclusive purpose the search for the contributing factors of each accident to prevent future recurrences, and also that accidents are the result not of a single cause, but of a series of factors.

Maintenane Questions

The "make-do" was pointed out as one of the major causes of accidents in small airplanes, as in the case of the pilot who added a homemake radiator to the engine block. The axle froze and the plane crashed, killing the inventor.

"Airplane maintenance has nothing to do with automobile maintenance", said Seripa's Leitenant Brito. An airplane, he said, is made with a minimum safety coefficient, because it needs to be light in order to fly. "While an airplane is large, it's fragile."

In accidents caused by maintenance, as in those that happen because of errors made in the air, there is also a chain of factors that culminate in an accident. An airplane is moved during maintenance, there's a change of shifts, it's not written down that tasks were not completed, a final inspection is made from the ground rather than by climbing a ladder, and a airplane takes off lacking half the screws that hold on a vital part. And fourteen people die in the crash.

Bird Psychology

Aircraft crews were the principal contributing factor in 70% to 75% of aeronautic accidents in the decade from 1985 to 1995, and the human factor may represent 90% of accidents in this new century. However, according to ICAO statistics, three out of every four accidents involve errors by people who are qualified and healthy, said Dr. Maria da Conceição Pereira Sougey, Seripa psychologist.

Dr. Pereira Sougey spoke of the importance of identifying psychological factors in accidents, and the importance of this in flight safety. She explained that an injured bird will try to continue flying, because air is his element. "But being that man is not made to fly, when he runs into a problem, his instinct is to try to land. Then, he loses the capacity to control the machine, that needs to keep flying."

The distinction between an error and a violation was brought out by the psychologist, who noted that just in the state of Bahia, this year, three accidents have happened because landing gear wasn't lowered. A simple error.

Some failures she qualified as "active failures", committed on the work floor, by those who work directly with the system. Others, "passive failures", happen at the management level, when weak points are not identified and defenses against errors are either absent or are, with time, neglected.

Vultures on the Runway

The human factors that cause accident aren't always employed in aviation. One important cause of accidents is collisions with birds. A news clip was shown which discovered the cause of a problem with vultures, which endangered planes landing at the Recife airport. An illegal slaughterhouse operated in the neighborhood, and the owner proudly showed the news crew that he washed the slaughterhouse every week, throwing the scraps of animals right at the head of the runway, where vultures leaned to wait in expectation. His understanding of the danger he was creating was at the same level as his notions of hygiene.

The Flight of Geese

Birds were also used to illustrate by Commandante Ilha, who used the flight of geese as an example of leadership. "The flight in 'V' diminishes air resistance . A goose flying alone looses up to 71% of its performance. " People, like geese, gain by working as a team.

Ilha emphasized communication as the most basic factor in CRM, and the importance of non-verbal communication, such as a pilot signaling with two thumbs up, or twirling his fingers to signal a mechanic to make the motor turn. One danger to which he alerted is the "power distance", which leaves subordinates with fear of their bosses, and unwilling to communicate problems.

'All Paths Lead to Sao Paulo'

Cel. Beiniek, besides speaking of Brazilian aviation's potential for growth, spoke of the obstacles at this moment. "It is a long path, and investment is the key." He hopes that Brazil will soon reach a moment where more is spent on the "air" side, such as runways and navigation aids.

Many airports in Brazil have only one or two runways. "If there's only one runway, and it's closed for maintenance, the airport is closed." An airport the size of Fortaleza's would have, in the United States, from three to five runways.

Another problem is that, in the flight network, "All paths leads to São Paulo." Brazil needs to have more airports in the future, with more widely distributed flights.

He also says that in as little as one year there may be a shortage of pilots in Brazil. "Without flight clubs, there are no pilots".

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