Tuesday, May 17, 2011

Brazil Judge Says Pilots' Prison Sentence Can Be Served With 'Community Service'

The Brazilian federal judge who convicted the two American pilots in the 2006 midair collision that killed 154 said they could serve their four-year sentences with 'community service' in the U.S.

Federal judge Murilo Mendes commuted a sentence of four years and four months into the community service to be performed in the U.S., with suspension of the pilots’ flying licenses. The pilots were convicted on a single count, basically a failure to observe that an anti-collision system on the airplane had gone offline before the crash.

A Brazilian judge, of course, has no jurisdiction in the United States, and there is no extradition treaty between the U.S. and Brazil on the charge the pilots were convicted of.

Credit where due here: People I have talked with about the verdict speculate that it was the least-severe sentence the judge could impose, on the least degree of criminal conviction -- in an atmosphere in Brazil in which public sentiment has been whipped up against the Americans since day one.

As such, the judge, Murilo Mendes of the federal court in Sinop, an Amazon city, seems to have acted with even-handedness in a very intensely difficult political situation.

The pilots were acquitted of five of the six charges against them, including the most serious ones -- failing to follow the flight plan and allegedly turning off the transponder. These really were the basis of the criminal case against the pilots, Joe Lepore and Jan Paul Paladino.

The pilots had said, with undisputed supporting evidence, that they were following Brazilian air traffic control instructions to maintain altitude at 37,000 feet when the collision occurred.

And despite hysterical Brazilian media and official allegations that the pilots unaccountably had turned off the transponder, which triggers the anti-collision system, not a shred of evidence ever was presented to show that to have been the case.

The transponder was not operative at the time of the crash. It is not known why.

Another base of the charges against the pilots rested on obvious mistranslations and misinterpretations by prosecutors and media in Brazil of comments the pilots were heard to make on the cockpit voice recorder during flight, including a casual discussion of how to operate a certain in-flight entertainment device (the Airshow screen) for use in the cabin. Prosecutors and media presented that as proof that the pilots were not qualified to operate the Legacy 600 aircraft.

There also was confusion about whether a pilot said "on" or "off" when discussing the transponder after the crash. The word is simply not clear in the recording.

The pilots, convicted on the single count of a failure to observe that the collision warning system was not on, were acquitted of five of the six charges against them.

The pilots have maintained their innocence of all charges.

They will appeal. An appeals court in Brazil has the option of disregarding factual evidence in the original court proceedings, unlike in the U.S., where an appeal can only be judged on errors of judicial proceedings.

Joel Weiss, an attorney for the two pilots in Long Island, told me this in a conversation this morning:

"It important to note that the judge acquitted on five out of the six charge counts. As to the sixth count, the single count of conviction, we will certainly appeal. Our position is that he misunderstood the evidence on this issue, and particularly misunderstood a colloquy between the pilots which was largely in an American idiom that does not translate accurately into Portuguese.

"Although we disagree with the conviction, if one accepts it initially as a given, his commuting the sentence to community service is an enlightened decision on his part," Weiss said.


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