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Families of Boeing crash victims take Justice Department to court

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The Justice Department has argued that the 346 people killed when their faulty Boeing 737s crashed are not victims of crime under federal law, even though federal prosecutors have charged the company with conspiracy to defraud federal regulators – and the company has admitted to this conspiracy.

On Friday, after months of opposition from the Justice Department and Boeing, the families of some of those killed aboard Max jets more than three years ago sought to counter that claim in federal court in Texas.

Their focus goes beyond symbolism and history: if their loved ones are considered “victims of crime” under the Victims of Crime Rights Act, it would be a key step in their efforts to void a deferred prosecution agreement between Boeing and the Justice Department that the families say allows the company to escape liability.

In Fort Worth on Friday, U.S. District Judge Reed O’Connor heard testimony and accepted an expert witness report from Christopher H. Keyes, a former senior Federal Aviation Administration security official, who said that foreign regulators and airlines rely heavily on the FAA. documentation to shape their own security practices and that Boeing’s actions at home have had deadly results overseas in this case.

The Justice Department had argued in earlier legal documents that it could not prove beyond a reasonable doubt that Boeing’s fraudulent conspiracy resulted in “the accidents of two flights in foreign countries, operated by airlines foreign airlines, supervised by foreign regulators and piloted by foreign pilots. ”

The immediate legal question before O’Connor on Friday was whether those killed on the Max jets were “directly and directly injured as a result of the commission of a federal offence,” the definition of crime victim under the law.

Under this law, victims of crime have “a reasonable right to speak with the government attorney in the matter.” Relatives of 18 of those killed said that right had been violated and they wanted Boeing executives to be prosecuted.

People killed in 737 Max crashes not ‘victims of crime’, court says

Lawyers for the Justice Department and Boeing cross-examined Keyes on Friday, and they objected to efforts to admit into evidence official investigation reports into Max’s crashes in Indonesia in 2018 and Ethiopia in 2019 and the findings of a congressional investigation into the blackouts that led to the tragedies, according to Paul G. Cassell, a University of Utah law professor and former federal judge who represents the families. The reports were admitted despite these objections, he said.

“The judge asked us to build a case to show that the Boeing crimes harmed the families of the victims, and today we provided the judge with hundreds of pages of documents and important expert testimony proving this point. “, Cassell said, adding that Keyes’ testimony and expert report shows that “Boeing’s lies caused the crashes.”

The Justice Department and Boeing declined to comment. A second evidence hearing is scheduled for August 26 to hear testimony from two other witnesses, an airline pilot and a risk expert. It’s unclear when O’Connor will make a decision.

The Justice Department apologized to the families for not speaking to them, despite saying there was no legal requirement to do so. He said officials had also revised internal policies to ensure consultations would take place in such cases in the future.

As part of the deferred prosecution agreement with the federal government signed in the final days of the Trump administration, Boeing admitted that its employees “intentionally withheld and concealed” critical information about an automated flight control system, known as the Maneuvering Characters Augmentation System (MCAS), from an FAA aircraft evaluation group.

Under the agreement, the Justice Department will drop its charges if Boeing meets certain conditions for more than three years.

Keyes, based on a review of FAA documents and outside investigative reports and more than two decades of safety oversight work at the agency, said in his report that Boeing’s deception of MCAS had led, in two distinct stages, to a tragedy.

First, Boeing’s “fraudulent omission of critical information” regarding MCAS led the FAA’s Flight Standardization Board to erroneously decide that pilots did not need extensive new training to fly Max aircraft, did he declare.

The FAA’s board called for moderate “B-level” training, which could be done on a computer, rather than more in-depth and expensive “D-level” training using a simulator flight. The decision of the board of directors is subject to the approval of an official of the aircraft evaluation group, he said.

Foreign airlines are not bound by the FAA’s decision, Keyes noted, but in practice all domestic and foreign operators of the Max “depend on the FAA for proper and accurate information.”

Second, because of this “erroneous determination” within the FAA, the pilots of Lion Air Flight 610 in Indonesia and Ethiopian Airlines Flight 302 “were not properly prepared to deal with the emergency facing them. presented and were unable to prevent the plane from crashing with catastrophic results,” according to Keyes’ expert witness report.

“An insufficiently trained pilot makes a dangerous pilot,” Keyes said in the report, adding that both crashes were caused by both a faulty MCAS and the “lack of knowledge/training of crews on how to handle properly” emergencies resulting from the system.

In both crashes, the system repeatedly forced the planes’ noses down, overwhelming pilots who failed to keep the planes aloft, according to U.S. and foreign safety investigators.

Keyes said in his report that such emergencies require immediate action by pilots and that “crew members must be so familiar with these actions that they can perform them correctly and reliably from memory.” Lack of proper training “puts every crew member and passenger on board every B737 MAX at undue risk of a catastrophic event every time it takes off,” he said.

Keyes said the incentives driving Boeing’s actions and their impacts were clear.

“Boeing intentionally ignored/violated [aviation safety] regulations in their quest to keep the selling price of the 737 MAX low and increase marketability,” Keyes said in his report. “Due to Boeing deception… the training recommendations were wrong. Faulty because Boeing chose profit over safety.

Congressional investigators, in the report accepted as evidence Friday by O’Connor, found that Boeing wanted to avoid a requirement for simulator training because it was expensive and would undermine its efforts to compete with rival Airbus.

Boeing’s automated MCAS system on the Max was designed to rely on a single external sensor, and faulty data from that sensor caused misfires, crash investigators said. The feature had been made increasingly powerful over the course of the plane’s development, and in Indonesia, MCAS automatically pushed the plane down “more than 20 times” in six minutes before the 737 plunged into the Java Sea, according to the National Transportation Safety Board.

According to a joint statement of facts from Boeing and the Department of Justice in January 2021, the company told the FAA’s Aircraft Evaluation Group in 2015 that the system could only activate in certain high-speed situations. The company then expanded considerably when the system took hold, especially when flying at low speeds, such as during takeoff.

“Boeing disclosed this extension to FAA personnel, but only to personnel responsible for determining whether the 737 MAX met U.S. federal airworthiness standards,” according to the statement of facts. Boeing did not disclose the MCAS expansion to the FAA’s Aircraft Evaluation Group, which is responsible for training decisions, according to the statement.

Boeing 737 Max crashes were a ‘horrendous culmination’ of errors, investigators say

The investigation by House Transportation Committee Chairman Peter A. DeFazio (D-Ore.) found that in addition to flawed technical assumptions by Boeing engineers and errors in judgment by company, the crashes highlighted “numerous shortcomings in oversight and accountability on the part of the FAA which played a significant role in the 737 MAX crashes.

The FAA said it does not comment on outside disputes.

Mark A. Forkner, then Boeing’s 737 chief technical pilot, told an FAA official via email in 2016 that he “is doing a lot of traveling over the next few months” and would be “a jedi spirit tricking regulators into accepting the training i was accepted by the FAA etc.

Boeing Chief Executive David Calhoun blamed Forkner and another former employee in a statement about the deferred prosecution agreement in January 2021, saying the company regretted the conduct she described but that “it does not reflect our employees as a whole nor culture or character”. of our business. »

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