[UPDATED Oct. 16]
Confusion never ends in the long saga of the attempt by certain elements in Brazil to exact revenge on the two American pilots involved in the 2006 mid-air collision over the Amazon that killed 154.
A regional federal court in Brasilia tonight affirmed the criminal convictions, but said that the original trial-court sentence of community service given to the pilots, Joe Lepore and Jan Paladino, no longer stands. Instead, the court ordered that the pilots serve time in "open regime" on the highly controversial conviction of over three years, rather than the four years of community service.
It wasn't immediately clear whether an "open regime" sentence requires a prison term. The new sentence is defined by the court as being "not convertible to community service," however.
[UPDATE OCT. 16 -- The AP is reporting today that the ruling actually is a victory of some kind for the pilots:
"On Monday, judges at a regional federal court in Brasilia ruled that the men do not need to perform community service. They also shortened their sentence to three years and one month — but ruled the men could serve their sentence in an "open" regime, meaning under Brazilian law they need not step foot in prison, just occasionally check in with Brazilian authorities. The ruling can be appealed and prosecutors had earlier indicated that was likely if this ruling did not go their way."]
The pilots lawyer said he would "study the sentence," and possibly appeal. Prosecutors, who I think are responding in part to media pressure from an angry group that represents a small number of the victims' families and has been relentless in villifying the Americans, also will appeal, seeking stiffer sentences.
Thanks as usual to Richard Pedicini, who took the all-night bus from Sao Paulo to Brasilia to cover the appeal verdict. Richard has been an invaluable and indefatigable reporter in Brazil since I first started writing about this strange case, shortly after I was among the seven people who survived the collision between a Brazilian GOL 737 airliner, which went down with all aboard in the central Amazon, and Legacy 600 business jet that somehow managed an emergency landing in the jungle.
The planes had collided at 37,000 feet on Sept. 19, 2006, after a series of errors by Brazilian air traffic control out them on a head-on path. A Brazilian investigation asserted that the American pilots were at fault for various reasons, primarily the fact that the Legacy's transponder was not functioning when the planes collided. The U.S. National Transportation Safety Board, which did its own investigation because an American-made plane was involved (the Boeing), found otherwise, stating that the primary cause of the accident was likely systemic and operational fauilts by Brazil's long-troubled, military-run air traffic control.
An atmosphere of intense anti-American emotionalism followed the crash in Brazil, where the media helped fan the flames and passed along false rumors, among them that the American pilots were flying aerial maneuvers at the time of the accident. In fact, the plane was flying straight and routinely, at its assigned altitude, when the crash occurred.
Ten months after the Amazon disaster, following a long air-travel upheaval throughout the country caused by Brazilian air-traffic controllers protesting that they should not be blamed for the disaster, there was another horrific aviation accident when a jet crashed at the airport in Sao Paulo, killing 199 people.
By the way, the report today in Newsday, the newspaper in Long Island where ExcelAire, the company that had just bought the Legacy, is based, does a competent job of covering the incremental news in this, but precision in nuances is sometimes a problem.
Today, for example, the Newsday report states that the American pilots were convicted of negligence "for not verifying that anti-collision equipment and a
transponder that would have alerted controllers to their location were
functioning in the Embraer Legacy 600 ..." (Italics mine).
This is a quibble, but the words in italics are debatable assertion, given that all evidence shows that Brazilian air traffic controllers were demonstrably not paying attention to the Legacy as it crossed the portion of the Amazon where radar and radio communications are notoriously spotty. Yes, a functioning transponder would have corresponded with Brazilian radar, and more importantly, the anti-collision alert that works with the transponder would have been the last chance to avoid the collision. But to assert that a functioning transponder would have alerted controllers is to stipulate that the controllers were alert.
Which they demonstrably were not.