PILOTS OUT OF BRAZIL; LAWYER CALLS CHARGE 'ABSURD'

The two American pilots held since a mid-air collision on Sept. 29 have left Brazil and are en route home. They're expected to arrive in Long Island late tonight.

Before having their passports returned, they were accused of unintentional wrongdoing by police at an all-morning session at police headquarters in Sao Paulo. The pilots -- who were questioned repeatedly by the miltary and by Federal Police two months ago, but not since -- invoked their right not to answer questions in Sao Paulo after learning at the beginning of the session that they would be formally accused no matter what they said.

There was a period of initial confusion about the accusation, which is called an indiciar and is more akin to an arraignment charge than a formal indictment. The pilots left Brazil thinking they had been actually charged with involuntary manslaughter. The actual accusation is, in the words of one legal expert I spoke with, "bizarre and evidently cobbled together." Police and prosecutors openly argued today over what the penalty might be on conviction before deciding to base it on the penalty for involuntary manslaughter, and to toss some some years onto it.

No evidence was presented to support the accusation. The press release refers vaguely to "elements of proof existing in the police inquiry." This is presumably a reference to interrogations of the pilots (and Legacy passengers) in the days after the crash. To date, however, no evidence implicating the pilots has been publicly produced by the police or military authorities.

There has been speculation that a temporarily malfunctioning transponder, a small electronic communications device in the cockpit, might have contributed to a chain of mishaps and errors at air-traffic control centers on the ground that caused the crash, though there has been no evidence produced yet that the plane's transponder malfunctioned. One police official told reporters today that the accusation is based on the idea that the pilots could have been negligent in failing to ensure that the transponder was working properly.

Here is the official press release, translated from Portuguese, describing the accusation and penalties:
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"Press Release

This morning, the pilots of the Legacy aircraft were at the Superintendency of the Federal Police in São Paulo and were interrogated. They exercised the right to remain silent, constitutionally protected, even after having been told that this was a moment in which they could exercise their defense and give their versions and explanations about the facts. Federal Police assigned to the Coordination of Operational Aviation accompanied the act.

The exercise of the right to remain silent does not alter the decision determining the return of their passports, as this is a resolution strictly by the courts, emitted by the Federal Regional Tribunal of Brasilia, and complied with by the Federal Police.

The pilots of the Legacy airship were charged under Article 261, Section 3, combined with Articles 263 and 258, all in the criminal code, which define the crime of "exposing a ship or airship to danger" in the involuntary mode, aggravated by the result of "death".

The penalty defined for the charge is the same applied to involuntary manslaughter, increased by a third, under the terms of Article 258 of the Criminal Code.

The decision to charge them was taken based on elements of proof existing in the police inquiry, which point to the lack of the caution that is necessary, expected, and can be demanded of pilots during the realization of a flight.

The investigations have still not been completed, and other conducts may be identified as causes of the accident.

The police inquiry will be sent to the Federal Court of Sinop/MT, on the 13th of December, with a request for additional time to continue the investigations.

Sector of Social Communication/Superintendency of the Federal Police in São Paulo
Tel (11) 3616-5011/5013"

(By "other conducts," it was made clear in an oral presentation, the police meant conduct by other parties.)
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Robert Torricella, a United States-based lawyer for ExcelAire Service, the business-jet charter company in Long Island that employes the pilots and owns the Legacy 600 jet involved in the collision that killed 154 on a Gol 737 airliner, called today's proceedings in Sao Paulo "absurd."

Immediately after their passports were returned, the pilots, Joe Lepore, 42, and Jan Paladino, 34, were whisked to the airport where they boarded a waiting private jet for the long flight home to Long Island. This thwarted a handful of Brazilian reporters who had booked tickets on the nightly American Airlines nonstop to New York from Sao Paulo, figuring they would corner the Americans during the nine-hour flight.

They are have been told they must return to Brazil, if ordered, to answer questions in any future judicial proceeding. The Brazilian investigations into the crash, being conducted by the Air Force (which runs air traffic control) and by the Federal Police, are expected to take 10 months to a year before completion.

Preliminary investigations, based on evidence such as cockpit voice controllers and air-traffic-control center data, have indicated that the crash was caused by a series of human and technical systems errors in air-traffic control that put a commercial Gol 737 airliner, and the Legacy 600 business jet being flown by the two pilots with five passengers on board, on a head-on course. The airplanes collided 37,000 feet over the Amazon. All 154 on the 737 died while the damaged business jet made an emergency landing at a jungle air strip.

In addition, air traffic controllers have testified -- and appeared on Brazilian television to state -- that they mistakenly misread the Legacy's altitude before the crash and were unable to communicate with either the Legacy or the 737 as the two planes flew on a collision course in a so-called blind zone over the Amazon where radar and radio communications are known to be unreliable.

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