Brazil: Pilots and 4 Controllers Indicted

Translation by our Sao Paulo bureau chief, Richard Pedicini:

By G1, in São Paulo, with information from RMT On Line

"The two pilots of the Legacy jet and four air traffic controllers were indicted today by the Federal Prosecutor Thiago Lemos de Andrade before the Federal court in Mato Grosso.

They were charged as being responsible for the accident which provoked the crash of the Gol Boeing, on September 29, 2006, in Mato Grosso. The 154 people who were aboard the airliner died. The Legacy and the Boeing collided in midair. The Legacy managed to land at the Serra do Cachimbo air base in the south of the state of Pará.

For the prosecutors' office, the "imprudence and negligence" of North American pilots Joe Lepore and Jan Paladino justified the indictment (formal accusation) against them. Lemos [asserted] that the six [the two pilots and four air-traffic controllers] had provoked the collision of the two aircraft in midair.

Military Justice prosecutor Giovanni Rattacaso [who works for the military] said that the case should continue under the civilian courts. "As soon as I receive the indictment, I will do an analysis of conflict of jurisdiction. Preliminarily, I can say that I understand that there is no need to bring the case to the military sphere."

---

I talked today with Joel R. Weiss, an attorney in Long Island for the pilots. He issued issued this statement today:

"The accident of Sept. 29 was a terrible tragedy and today the prosecutor's charges against the pilots compounds that tragedy. It is an injustice to charge the pilots, who are innocent of any crime. They obeyed the altitude clearance given to them by Air Traffic Control and followed all international aviation regulations."

Mr. Weiss continued, "There are currently Congressional hearings in Brazil investigating the aviation crisis. Yesterday, it was reported that the Report Referee of the Aviation Crisis [congressional investigative panel], Marco Maia, said: "'If the controllers had adopted standard [aviation] procedures, there would not have been an accident." [My italics]

Mr. Weiss said, "Aside from being unjust, the prosecutor's charges are also premature, as the professional investigation by CENIPA (the Center for Investigation of Aeronautical Accidents) is still underway."

----

And so, Brazil's Keystone Kops have made their move. But it came with a surprise, in that the Federal Prosecutor also decided to indict four Brazilian air traffic controllers, one of them on a felony count of intentional negligence. The two pilots and four controllers, the prosecutor said, together caused the disaster.

No one else.

The next step is expected to be that the federal judge whom they rushed this case to in forlorn Sinop, 400 miles north of Cuiaba in Mato Grosso, and a few hundred miles south of the collision site near the southern border of the state of Para, will rubber-stamp the indictment for trial.

However, this is Brazilian politics, in a country that was a military dictatorship till just 25 years ago, and strange things happen Down the Rabbit Hole.

After all, it came as a surprise to see the four controllers accused along with the two American pilots. The prosecutor, not the Federal Police, is widely believed to have decided at the last minute to add the controllers to the accusation, after it had become clear to well-tuned political ears in Brazil that domestic and international public opinion would react strongly against indicting only the Americans, when all of the evidence points to systemic and human failures in air-traffic control as the cause of the crash.

Mr. Pedicini of our Sao Paulo bureau wonders about that:

"At the last possible moment, the controllers are named. The prosecutor holds different views than the police? Or is it he wants to keep hold of the case, so that he can mismanage it in Sinop, MT [Mato Grosso], Pop. 100,000, far from the eyes of the press and the world, rather than letting Rattacaso get his hands on the controllers? The principal goal of all of this is to facilitate the civil suits in the United States. It is not about anything else at all. If the prosecutor can get the controllers acquitted and the pilots convicted -- or if he's mangled the indictment so that it will be accepted against the pilots, but not the controllers - then he's placed someone well on the path to a big payday," Mr. Pedicini says.

One takes nothing at face value down the rabbit hole, I would add. I agree that immense public pressure is coming from relatives of the 154 victims, who want to scapegoat the pilots alone, and to ensure that the civil cases are tried in the United States, where the money is, and not in Brazil, where the likelihood of getting a big payout from the Defense Department, which runs all air-traffic control, is slim to none.

Meanwhile, I was intrigued at the the prosecutor's statements at a press conference this afternoon that -- yes, by golly, -- there was something to all that talk about blind spots and dead zones in radio and radar coverage in regions over the Amazon (as I had been saying for seven months, creating violent denunciations against me in Brazil and from the bumbling Defense Minister, Wonderful Waldir Pires, whose department runs air traffic control and, of course, has its hands on its budget).

But since the Keystone Kops' brilliant investigation has now "found" that there are known blind spots and dead zones (the Brazilian military has always forcefully asserted that to talk of blind zones and radar holes was a calumny against the honor of Brazil) -- well, that just makes the suspects MORE GUILTY, the esteemed prosecutor argued, employing true "Alice in Wonderland" logic.

"It is evident that there are blind spots in air space. This only aggravates the conduct, because they knew that the aircraft was entering into a critical area," Andrade said. He emphasized that it was proved in the investigation that in that stretch radio and radar function precariously.

(My note: "It was proved in the investigation?!!" Hey, Keystone Kops: As I have been reporting since the day I got out of Brazil, every pilot who flies in Brazil is fully aware of the blind spots and the bad communication (both technological and human.). Respected international aviation organizations have also been pointing this out. In November, IFATCA -- the International Federation of Air Traffic Control Associations -- issued a report warning that Brazil's air-traffic controllers , especially around Brasilia an the adjacent Amazon region (where the collision occurred), work in "an unsafe and dangerous system." Great police work: the Keystone Kops have finally done their investigation and found out, months after everyone in the world with the brain of a turnip already knew it, that there are big ATC problems in Brazil. But rather than holding t0 account the military brass responsible for those problems, they blame a handful of working stiffs.)

Here is a link to that IFATCA report. By the way, for those of you planning to fly in South America, IFATCA also recently expressed some serious concerns about Argentina's air-traffic control system, too.

Here's a link to the March IFATCA magazine special explaining in detail how the accident occurred. The International Federation of Airline Pilots also issued a recent condemnation of the way Brazil has conducted its investigation. And here is another copy of the link to the detailed report ExcelAire sent to the Federal Police last month, outlining the elements of the case that are not in dispute.

Back to the jungle: Oddly missing today in this dash to Sinop court was any real discussion of Brazil's busted-valise of an air-traffic control system, and of those who are responsible for it, the Brazilian military, however.

For months, the Federal Police have been rushing to obtain criminal indictments, even though several governmental and independent investigations are still looking into the multiple causes of the crash, and even though international pilots' and other aviation organizations have issued stern warnings about criminalizing aviation accidents, especially those that are still under investigation.

The federal prosecutor based the indictment on a 44-page Federal Police report that most people following this story -- beyond the Brazilian government and military, that is -- believe was a monumentally flawed attempt to cover up the actual causes of the disaster.

The surprise indictment of four controllers on the ground was seen as a maneuver to deflect charges that the Federal Police were determined to railroad the Americans only, and avoid any action against controllers, who are military personnel.

Warning (which ought to be mandatory in journalism in situations like this): I don' t yet have a full grasp of the nuance of what happened today in the godforsaken city of Sinop (pop. 100,000), 400 miles north of Cuiaba, the capital of Mato Grosso. The people I know in Brazil who have been following this case are wondering why one air traffic controller seems to be defined as a principal culprit, after the pilots. WTF is going on there?

Moreover, it's unclear how Brazil's air-traffic controllers in general will react to the criminal charges against their four colleagues, and the precedent this sets, as well as the announcement that the controllers will face trial in a civilian court.

For months after the disaster, air traffic controllers staged repeated protests that virtually shut down Brazil's air traffic system for days at a time. The job actions were presented as protests of poor working conditions and bad pay, inadequate supervision and training, and antiquated and unsafe equipment at air-traffic control centers. But they were also seen in a political context -- as clear warnings to the government of what the controillers could do if blame for the disaster shifted their way.

On Dec. 8, when a Brazilian court ordered the Americans released from Brazil after they were detained without charge for 71 days following the accident, Federal Police hastily cobbled together the accusation that is now, six months later, the basis for the indictment. Just before leaving Brazil, the pilots were required to sign a statement in Portuguese saying they agreed to cooperate in future investigations.

The Federal Police have produced no evidence that the American pilots did anything wrong. The police charges are based exclusively on the assertion that the signal of the American plane's transponder -- a secondary locator device that also triggers an anti-collision alert if another plane is approaching-- was not being received on the ground, and that the pilots failed to make themselves aware of that.

Air traffic control, on the other hand, is required to monitor an aircraft's transponder, and the evidence is not in dispute that controllers had clear indications for 55 minutes before the collision that the air-traffic control center handling the flight was not receiving a signal from the Legacy 600 business jet's transponder. The air traffic control operators handling the Legacy (there were two because a shift change occurred) did not attempt to notify the business jet about the problem, as they are required to do.

It also is not in dispute that Brazilian air-traffic control had the two airplanes -- the Legacy business jet and an oncoming Gol 737 airliner with 154 aboard -- cleared on a collision course at 37,000 feet over the Amazon. Nor is it in dispute that Brazilian air traffic control lost contact at times with both the Legacy and the Gol in the infamous "dead zones" over the Amazon where radar and radio coverage is spotty at best.

Here is an earlier story today predicting the charges against the pilots (but not the controllers):

O ESTADO DE S.PAULO
Indictment of Legacy pilots offered today
If court accepts prosecutor's recommendation, they will become defendants in a criminal case
Bruno Tavares, BRASILIA

Federal prosecutor Thiago Lemos de Andrade will offer today to the Federal Court of Mato Grosso the indictment (formal accusation) against American pilots Joseph Lepore and Jan Paul Paladino. The two conducted the Legacy jet that on September 29 collided with a Gol Boeing 737-800, killing 154 people. The indictment will be delivered today to judge Murilo Mendes, head of the judicial subsection of Sinop (MT). If the magistrate accepts the Federal prosecutor's indictment, the pilots will become defendants in a criminal case which will investigate their responsibility in the aviation accident.

Before they returned to the United States on December 8, Lepore and Paladino had already been accused by the Federal Police for "exposing an embarkation or aircraft to danger," unintentionally. If they are convicted of the crime, the two are subject to a penalty of from 4 to 8 years of reclusion. [MY NOTE: Our Sao Paulo bureau chief Mr. Pedicini notes that the newspaper is wrong here: "For unintentional, it's 4 years of "detention", which is an alternate penalty like a halfway house or community service. "Reclusion" is prison, but that's only for intentional."]

Despite the accusation of the pilots having been made at the end of last year, it was only on the 7th of this month that the Federal Police concluded their investigations. In a 41-page report, Federal police inspector Renato Sayão Dias maintained the decision to hold the American pilots responsible for the accident.

However lawyer Theodomiro Dias Neto, the criminal lawyer heading the team defending Lepore and Paladino, reacted against the Federal Prosecutor's decision. "It is an absurdity that the press knows of this beforehand," the pilots' lawyer protested. "In any event, it seems to me premature to offer an indictment without first knowing the result of the technical investigation which is being done by Cenipa (Center for the Investigation and Prevention of Aeronautic Accidents."

Sought yesterday by O Estado, the Federal prosecutor did not want to advance the content of his manifestation. But, during six months of police investigation, Andrade had already demonstrated the conviction that the accident had been caused, in large part, by human error. Although he had 15 days to emit his opinion, he finished the work in only four days. "I know the inquiry well", he admitted.

CONTROLLERS
The Federal Prosecutors' Office and the Military Prosecutors' Office (MPM) are still discussing if the four flight controllers cited in the Federal Police inquiry will be named in the same process or if the investigation will be conducted in the military sphere.

In the preliminary evaluation of military prosecutor Giovanni Rattacaso, there are already elements to indict the professionals for involuntary homicide doubly aggravated (inobservance of craft or profession and multiple victims).

--END