From my intrepid correspondent Richard Pedicini in Sao Paolo, news that the Brazilian court has convicted the two American pilots in the Sept. 29, 2006 mid-air collision that killed 154 over the Amazon. (I was one of the survivors on the business jet that collided at 37,000 feet with the Brazilian airliner, in an accident that the U.S. National Transportation Safety Board said was caused primarily by grave errors by Brazilian air traffic control)
SÃO PAULO -- American pilots Joseph Lepore and Jan Paladino, who flew the new Legacy 600 business jet that collided with a Gol 737-800 airliner at 37,000 feet over the Amazon on Sept. 29, 2006, were convicted Monday and sentenced to four years and four months of prison. 154 people died when the 737 crashed into the Amazon.
The charge against the Americans was "putting aviation safety at risk."
The decision was issued by federal judge Murilo Mendes, of the Amazon-regional court of Sinop in the state of Mato Grosso, where the Brazilian airliner crashed in dense jungle after the two planes collided. The badly damaged American business jet, on its maiden flight, managed a landing at a jungle airstrip at Cachimbo, in southern Para, 25 minutes after the collision.
Lepore continues to fly for the charter company ExcelAire, which had just purchased the $26 million Legacy at the Embraer manufacturing plant in San Jose dos Campos, near Sao Paulo on the day of the crash. Paladino now works for American Airlines.
The following are my notes:
Here is the key finding of the investigation of the accident by the U.S. National Transportation Safety Board, which was involved because one of the aircraft was U.S.-owned, and which attributed the probable cause of the disaster to faults by Brazilian air traffic control (ATC):
"The evidence collected during this investigation strongly supports the conclusion that this accident was caused by N600XL [the Legacy] and GOL1907 [the 737] following ATC clearances which directed them to operate in opposite directions on the same airway at the same altitude resulting in a midair collision."
Immediately after the crash, in an atmosphere of intense anti-Americanism that coincided with a presidential election, the Brazilian authorities rushed to criminalize the accident, which is considered unwise by aviation investigators. From day one, Brazilian authorities blamed the Americans and ignored protests from the international aviation community that Brazilian air-traffic control, especially in the vast and mostly empty Amazon skies, was beset by serious operational and systemic problems.
A notoriously flawed Brazilian investigation backpedaled the Brazilian air traffic control issues and instead blamed the U.S. pilots for not following a flight plan that would have put the Legacy 1,000 feet below the Brazilian airliner. The Americans said -- and every international aviation authority agrees with them -- that they were following instructions by Brazilian air traffic control to maintain altitude at 37,000 feet.
The Brazilian military (which runs that country's air traffic control system) and federal police charged that the American pilots failed to follow the flight plan, and operated the Legacy after turning off the aircraft's transponder, an avionics device that also triggers an anti-collision warning system. There has been no evidence produced showing that the Americans turned off the transponder or had any reason to even consider doing so.
It is unclear why the transponder failed over the Amazon, where the Legacy was largely out of radio contact for much of the 50 minutes before the collision. International pilots told me repeatedly after the accident that Amazon skies are famous for dead-zones in communications and that Brazilian air traffic control was long considered to be poorly operated, with inadequately trained controllers who were often unable to communicate in English, the international language of aviation.
In his 86-page verdict today, the judge does acknowledge errors by Brazilian air traffic control and said that a controller made a "gross error" in giving the wrong flight level to the Americans, but the prosecutor's office unfathomably chose not to accuse him of that.
Last year, a military court did convict one air traffic controller, sentencing him to 14 months for failing to take action when he saw that the Legacy's anti-collision system was not on. Four other controllers were acquitted.
The Legacy business jet was bound from San Jose dos Campos to Manaus when the collision occurred late in the afternoon of Sept. 29, 2006, in clear, sunny skies.
Right after the accident, when I stated in media interviews that international pilots had misgivings about Brazilian air traffic control, the Brazilian defense minister, Waldir Pires, denounced me and claimed, ridiculously, that the Legacy had been performing aerial maneuvers and stunts over the Amazon at the time the two planes collided. He was later fired, and a Brazilian court subsequently tossed out a defamation suit filed against me for allegedly causing "dishonor" to Brazil in my reporting and commentary on what I have always maintained was an attempt by Brazil to scapegoat the Americans. The plaintiff in that suit is appealing to have it reinstated, and also seeking a criminal charge against me for causing insult to the entire nation of Brazil by my reporting and commentary.
The existing treaty between the United States and Brazil does not provide for extradition on the charge the pilots are convicted of. However, it is not clear whether the Americans might vulnerable to extradition if they should travel to countries, especially in South America, with different treaties with Brazil.