2 American Pilots Testifying At Criminal Trial in 2006 Brazil Mid-Air Collision That Killed 154 Over the Amazon

The two U.S. pilots who flew the Legacy 600 business jet that collided with a Brazilian 737 commercial airliner over the Amazon in 2006 are testifying in their own defense today and tomorrow in a criminal trial being held in Brazil.

An investigation by the U.S. National Transportation Safety Board (NTSB) found that the probable cause of the horrific accident was operational errors by Brazilian air traffic control, which put the two airplanes on a collision course at 37,000 feet. But the Brazilians nevertheless charged the American pilots with criminal offenses.

The American pilots, Joe Lepore and Jan Paladino, are being tried in absentia in Brazil. Their testimony is being heard at a federal courthouse in Long Island, N.Y., via teleconference with the criminal court in Brazil.

The Brazilian prosecutors had initially demanded that the pilots testify at the Brazilian Embassy in Washington, but finally agreed to take testimony instead on U.S. territory, at a federal courthouse.

After the collision on Sept. 29, 2006, the seriously damaged Legacy jet managed an emergency landing at a remote Amazon airstrip, about 25 minutes after the 737 plunged into the jungle with 154 on board. I was one of the seven survivors on the business jet.

In a politically charged atmosphere at the time, the Brazilian military (which runs air-traffic control) and the federal police rushed to criminalize the accident, against the judgment of the international aviation community. A Brazilian investigation found some fault with air traffic control, but laid most of the blame on the Americans. The NTSB, which concluded otherwise, had the authority to conduct its own investigation in Brazil because an American-owned plane was involved.

Basically, the charges against Lepore and Paladino center on allegations, for which there has been no evidence produced, that the Americans turned off a critical piece of cockpit equipment called the transponder. The transponder triggers the aircraft anti-collision warning system that would have been the last possible chance to avoid the collision.

Catastrophic aviation accidents usually occur as a result of a chain of errors which typically come to light during an objective and lengthy investigation. Criminalizing an aviation accident is considered to be a mistake because it obviously impedes a thorough investigation, with key witnesses on the defensive.

There is no dispute that the Legacy's transponder was not operational for almost an hour before the crash, perhaps because of a malfunction. During that time, the aircraft was also mostly out of radio and radar contact, partly because of well-known communications "dead zones" over the central Amazon where the collision occurred. Aviation experts have said that a transponder like the one in the Legacy that goes off-line gives no obvious signal to the pilots that it isn't functioning.

Brazilian prosecutors are trying to prove their case that, for some reason, the American pilots turned off the transponder, causing the disaster. The pilots deny that they turned the device off, or were otherwise negligent in operating the airplane.

In testimony today, Paladino reiterated that, and said that he and Lepore followed Brazilian air traffic control instructions to maintain altitude at 37,000 feet during the flight from takeoff near Sao Paulo, diagonally across the Amazon to the planned destination, Manaus. The collision occurred about midway, over the Amazon state of Mato Grosso.

The Brazilians have charged that the American pilots ignored their flight plan, which called for routinely descending to 36,000 feet on the portion of the flight where the collision occurred. The American pilots have maintained that they were at the assigned altitude, and that under aviation protocols, air traffic control instructions automatically take precedence over a flight plan that is routinely filed well before takeoff.

Testifying today, Paladino noted that air traffic controllers commonly overrule flight plans. In the cockpit, "I rely on air traffic control," he said.

Lepore is scheduled to testify tomorrow.

After the crash, the pilots were held for two months in Brazil, and released only following an international furor about Brazil's handling of the incident. They, and several low-ranking air traffic controllers, were then charged with criminal offenses, which carry prison terms on conviction.

[Here's my initial report on the crash as it appeared on the front page of the New York Times. I later wrote a lengthier report in the Sunday magazine of the Times of London.]

Lepore, 46, is still a pilot with Excelaire, the Long Island charter company that had just purchased the $25 million Legacy jet in Brazil on the day of the crash. Paladino, 38, is now employed by American Airlines.

In a much smaller matter, I was sued for defamation in Brazil because of my own reporting and commentary on the crash. That reporting and commentary occurred in mainstream print, in television and radio interviews immediately after the accident, and subsequently on blog posts in which I argued forcefully against the Brazilian rush to judgment. During the two months after the crash, I also pressed for the release of the pilots from Brazil and severely criticized Brazilian authorities for what I asserted was a rush to scapegoat the Americans and cover up poor operational systems in Brazilian air traffic control.

Till Paladino's testimony today, I was the only one of the seven survivors who was able to speak publicly about the disaster.

The complaint against me falsely claimed that I had referred to Brazil as "most idiot of all idiots," among other demonstrably untrue allegations. The complaint, filed by the widow of one of those killed in the crash, rested on the assertion that an alleged insult to the honor of Brazil constituted an actionable injury against every citizen of Brazil. Till the lawsuit was filed, I had never heard of the plaintiff.

A judge threw out the suit last year, but the plaintiff's attorneys have appealed, and are also seeking criminal charges against me for alleged defamation of the nation. Last year, mostly because of libel-suit abuses in England but partially because of the strange Brazil libel case against me, Congress unanimously passed, and the president signed, a federal law that prohibits enforcement in the U.S. of foreign libel judgments that are considered to be an affront to the U.S. First Amendment.

I'll file an update tomorrow on the pilots' testimony. If convicted, the Americans are not subject to extradition to Brazil under U.S. law. But a conviction in Brazil would carry grave implications for a pilot who flies internationally.

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