Sunday, November 12, 2006


There were strong hints last week that the two American pilots being held hostage in Brazil after a Sept. 29 mid-air collision over the Amazon that killed 154 were going to be released this week.

The reason for that is the Brazilian Air Force, and its boss, the dissembling Defense Minister Waldir Pires, had pretty much run out of excuses for detaining the two pilots while the secret investigations drag on. The Air Force is responsible for air traffic control, as well as for INVESTIGATING aviation accidents.

Prospects for scapegoating the pilots, Joe Lepore and Jan Paladino, both of Long Island, faded considerably two weeks ago when it became clear that the Legacy 600 business jet that collided with a Gol Airlines 737 was not defying Air Traffic Control orders and was flying at its assigned altitude, 37,000 feet, under orders from Air Traffic Control, which according to all international aviation protocols take precedence over a flight plan filed before takeoff. It so happened that the Gol 737 was also at 37,000 feet flying in exactly the opposite direction, under orders from Air Traffic Control, when the horrible collision occurred over dense jungle between Brasilia and Manaus.

Two weeks ago, ten air controllers who were on duty at the ATC centers in Brasil and Manaus during the crash were asked to testify. They refused, saying they were under psychiatric care. Hundreds of other controllers -- saying they wanted to dramatize workplace stress and major faults with air traffic control in Brazil, as well as to protest what they saw was a shifting the blame to them -- conducted a work slowdown and tied up air traffic in Brazil for over a week.

Mooting the question of pilot error for being at 37,000 feet left only three major plausible causes for the crash (and a host of minor ones, as there always are). The two most likely are egregious air traffic control error, perhaps in combination with a manfunctioning of the Legacy's transponder, a device that helps air traffic controllers to more precisely identify the aircraft that they are already supposedly tracking on radar.

Neither of those causes would allow the Brazilians to reasonably continue holding the pilots as virtual hostages while their interminable overlapping investigations drag on. That left only one excuse: the batty notion, put in play weeks ago by Minister Pires and others, that the American pilots had deliberately turned off their transponder so they could do "trick maneuvers" or "aerial acrobatics" to put their new jet through its paces in the Amazonian skies.

Keep in mind that there will be hard evidence from black boxes and radar to show that this never occurred -- but that evidence has not been released by the secretive Brazilian authorities.

Then last week, the lawsuits began. One of them, filed in New York Thursday by the Chicago law firm Ribbick Law, named the pilots among the defendants, accusing them of acting "carelessly and negligently."

Yup. The asinine charge that the pilots were doing trick maneuvers in the sky has now become part of a legal proceeding. It's Loop-d-Loops in LooneyLand time.

I try to keep myself personally out of this story, while updating you on developments, though obviously I have a strong point of view here. So you can imagine my astonishment when I read the following in a report on the suit that ran, datelined Sao Paulo, Nov. 9, on the Dow Jones news wire:

"The lawyers will seek damages from the pilots, Joseph Lepore and Jan Paul Paladino, and from ExcelAire [My note: that's the Long Island air-charter company that had just bought the $25 million Legacy 600 and that employs the two pilots] BASED ON A DEPOSITION FROM NEW YORK TIMES JOURNALIST JOE SHARKEY. SHARKEY'S DEPOSITION ALLEGES THE PILOTS WERE INDULGING IN INAPPROPRIATE MANEUVERS TO TEST THE PLANE. [my caps] That accusation was also made by defense ministry investigators, said Monica Kelly, a partner at Ribbeck Law, during a press conference in Sao Paulo."

In a separate story by the Associated Press that does not mention my apparent psychotic episode as suggested by Dow Jones, Manuel Von Ribbeck, the law firm's senior partner, was quoted as saying: "Someone high up in the Air Force confirmed our theory of negligence by the pilots. Unfortunately, I cannot reveal any names."


Now, if you do a word search on "maneuvers" or "trick" in entries on this blog since I startd writing about this event, you will see that I have consistenty ridiculed as asinine the notion that Joe and Jan were doing trick maneuvers or any other sort of unusual maneuvers at any time on that flight. We flew smooth and steady, in an utterly normal manner, till the time of the impact. In fact I was calmly working on my laptop when the collision occurred.

In questioning during two days of detention in Brazil, first at the jungle airbase in Cachimbo where we managed an emergency landing, and later in an all-night interrogation at a police headquarters in Cuiaba hundreds of miles south, I was emphatic that any suggestion of trick maneuvers was untrue, and I continued to reiterate that in dozens of media interviews after I got home, including one on the major Brazilian T.V. network "Globo" where I answered the question this way, just so there wasn't any doubt: "No, no, no. no, no, no, no! Absolutely not! No, no, no!" Not eloquent, but I thought it drove the point home in simple English to a Portuguese-speaking audience.

I contacted Dow Jones and asked for a correction, which has now run on their news wire. The reporter who covered the press conference in Brazil -- who hadn't tried to contact me for comment before running the story about what I allegedly said in a deposition -- called last night and apologized for "the terrible mistake."

He had not seen my deposition, he said. (Neither have I, incidentally). Attorney Kelly, he said, had mentioned my deposition and made the allegation, "in a room full of reporters," that I accused the pilots of aerial hot-dogging. I may have missed it in the Portuguese press, but so far the only place I have seen that charge has been on the Dow Jones wire.

Now, I worked for Dow Jones at the Wall Street Journal for seven years, and it is a world-class outfit. We all make mistakes in this business, and when we do we correct them in a forthright manner, which is exactly what Dow Jones did last night. It said:

"The story "Victim's Family Sues Honeywell, Excel on Brazil air crash" ... incorrectly stated that Joe Sharkey, a New York Times journalist [My note: I write a freelance weekly business travel column for the paper and am not on staff, and nothing on this blog reflects any endorsement or involvement by the New York Times], alleged the pilots of an ExcelAire jet involved in a midair collision were indulging in inappropriate maneuvers during a deposition to Brazilian authorities. Sharkey has consistently said that the plane was flying in a completely normal manner when the impact occurred."

O.K., fair enough from my perspective.

But a judge is going to rule tomorrow in Brazil on whether the American pilots should be allowed to leave (they're holed up in a Rio hotel under virtual house arrest). And from what I hear through my fairly active grapevine from Brazil, the answer is likely to be no, now that these Flying Circus charges have been revitalized by the air force -- desperate to keep blame from itself -- with the assistance of the Chicago lawyers.

I've seen this coming for some time, as you know. Almost from the start of the investigations, Brazilian authorities have been recklessly talking about "aerial stunts" and "trick maneuvers" by the Legacy pilots, usually asserting that the pilots turned off the transponder solely to try to hide their airborne antics.

On Oct. 4, when the investigation had barely begun, Geraldo Piero, a director of the Federal Police in Mato Grosso, the state where the crash occurred, was one of the first to speak about charging the pilots with a serious crime. Make that, one of the first to suggest the pilots were guilty of a crime.

Listen to this beauty of a statement from him, four days after the accident:

"We will start investigating if the two pilots caused the accident, and if they are proven guilty they could be charged with involuntary manslaughter," he said. "Preliminary investigations indicate that the pilots may have turned off the transponder," he said, adding: "They knew the risks they were running and nevertheless they took certain attitudes that endangered the lives of people."

Minister Pires, meanwhile, is rushing to get out his agency's own version of an informal "preliminary report," while the official investigations are not expected to be completed for many months.

He said the other day that his preliminary report will be issued this week. He said, "It is an important instrument not only to tell who are the culprits, but especially to teach us about what happened so that we can prevent new tragedies ..."

The Brazilian news account on this development assured readers that Brazilian congressmen have been taken for visits to air traffic control centers around the country and "were told in no uncertain terms by the military that there is no possibility this accident was caused by a failure from traffic controllers, radars or communication radios."

Hmmmmm, a mystery! I love mysteries! I wonder who will be named as the "culprits" in this preliminary report? A clue: "The Brazilian Air Force is convinced that Lepore and Paladino deliberately turned off the Legacy's transponder. The American pilots, however, have denied turning off the transponder or doing air acrobatics as they have also been accused of."

So is the fix in? And where is the international aviation community? Has it collectively "slipped the surly bonds of earth," to quote that wonderful poem that makes aviators dewey-eyed.

Shortly after this tragic event occurred, various aviation groups issued declarations about the growing tendency to criminalize air accidents and look for someone -- whether pilots or controllers or whomever -- to charge with a crime. Others called on Brazil to conduct a fair and timely investigation.

For example, in an Oct. 11 statement, the Allied Pilots Association, the union that represents 13,000 American Airlines pilots, said it was confident the Brazilian authorities "will conduct their investigation in a manner commesurate with Brazil's standing as a great nation" and said that everyone affected by the investigation would remain "in our thoughts and prayers." The statement ended, "APA officials will have no further comment for the duration of this accident investigation."

In an Oct. 5 statement, the Flight Safety Foundation said, "We call on the Brazilian government to stay strong in the face of immense pubic pressure and to continue to respect the integrity of the investigation and not rush to judge the various players in this incident." On Oct. 18, major aviation groups in the U.S., England and France issued a joint resolution decrying "the increasing tendency of law enforcement and judicial authorities to attempt to criminalize aviation accidents, to the detrement of aviation safety."

The statement added, "We are increasingly alarmed that the focus of governments in the wake of accidents is to conduct lengthy, expensive and highly disruptive criminal investigations in an attempt to exact punishment, instead of ensuring the free flow of information to understand what happened and why, and prevent recurrence of the tragedy."

Such fine words, men and women of aviation! Not to mention the "thoughts and prayers" of the American Airlines pilots union. (Jan Paladino, incidentally, is a furloughed former American Airlines pilot).

But listen, aviation community: Your two colleagues down there in Brazil are being held hostage for political and financial reasons, and it's time you moved away from the copy machines with your grand statements. It's time for you to stand up for them.

Right now, the international commmunity of pilots all know that what is going on in Brazil is a travesty. I suggest you forget the great statements and appoint some spokespeople to get on some old-fashioned soapboxes and mount a public drive, to put some pressure on Brazil, and perhaps Brazil's important tourist industry, to straighten up and fly right in this incident and to get the Legacy pilots home by Thanksgiving.


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