Brazil Reverses Itself, Finds Me Guilty of Causing 'Dishonor' to the Nation and Demands a 'Retraction.' ... My Reply: Retract This!

[UPDATE, Dec. 20 -- Since posting this over a month ago, I decided, for the edification of my readers, to approve for this one post many of the more vile comments that routinely arrive from my fans in Brazil, who just love to accuse me of being a murderer, etc., and seem to be blissfully self-unaware. On the other hand, some of the comments come from sensible Brazilians. I post some of the vile comments (see comments link at end) so that sensible people here can see what I mean about trying to be rational in Brazil ...]

In what is clearly a brazen challenge to American law that protects U.S. citizens from foreign defamation judgments in foreign verdicts that are a clear affront to the First Amendment and U.S. free speech protections, a Brazilian court today found me guilty in a defamation case brought by a Brazilian woman I had never heard of, nor written a single word about.

Today's court decision overturned an earlier one that had dismissed the case against me, saying the plaintiff had no ground to sue because I had never written or said a single word about her. Two of the three-judge panel decided against me. The third judge said he's still studying the papers, and will make his decision known by Dec. 1, but even if he sided with me that would still make the verdict stand at 2-1.

The lawsuit makes preposterous allegations, including an astonishing one that actually suggests that I was on board the Legacy business jet, which collided at 37,000 feet over the Amazon with a Brazilian airliner, as a participant in a nebulous plot to claim the Amazon rain forest for unspecified imperial interests.

In the collision, on Sept. 29, 2006, 154 people on the Brazilian 737 died in a horrifying plunge to the jungle, while seven men on the business jet that collided with it, including me, survived after a harrowing 25-minute flight in a severely damaged airplane that, at the last minute before crashing itself into the jungle, managed an emergency landing at a jungle airstrip.

The other allegations in the suit are also outright fabrications, cooked up in an attempt to cover up official malfeasance in crash aftermath, to discredit me for accurate reporting and commentary on the disgraceful official Brazilian handling of the accident, and to inhibit me from doing further reporting and commentary in the United States.

As I reported here soon after the crash, the Brazilian authorities -- cheered on by a xenophobic media that was aflame with anti-Americanism -- had rushed recklessly to criminalize the accident and scapegoat the American pilots, long before the facts were known.

Severe problems in the military-run Brazilian air traffic control system, widely known before the crash, were covered over by authorities. However, an investigation by the U.S. National Transportation Safety Board concluded that, as I also had been reporting, systemic and operational faults by Brazilian air traffic control were likely the primary cause of the disaster. (The N.T.S.B. was involved in the investigation in Brazil because one of the planes, the Boeing 737, was American-made. The Legacy was made by the Brazilian manufacturer Embraer.)

The lawsuit -- which accuses me of causing "dishonor" to the entire nation of Brazil -- was based on the remarkable legal assertion that the plaintiff, as a Brazilian citizen, suffered an insult to her honor because of my reporting -- even though she was never mentioned in any way. Among the odd things that I am falsely accused of writing -- as an insult to the honor of all Brazilians, according to the suit -- is that "Brazil is most idiot of idiots."

That and other fabricated comments attributed to me in the suit were mostly culled, in fact, from comments appended to, or linked from, various Web sites in Brazilian media in which anonymous Brazilians ranted about me and even, in some cases, about Brazilian authorities for the disgraceful way they handled the aftermath of the crash. Ultimately such online mayhem melds into a rat's-nest of bewildering hyperlinks, with lots of side trips down links that can lead to Crazy Lane.

But even if I forgotten basic grammatical elements of my native tongue and had written that Brazil is "most idiot of idiots," that would not be remotely actionable in any country with any respect for free speech -- and certainly not under U.S. law.

The lawsuit is now probably Exhibit A in the free-speech issue presented by attempts by people in foreign countries, or their governments, to punish free speech in the United States that someone in a foreign country objects to.

If any foreign citizen, or government, can reach into the United States to criminalize free speech here that anyone in a foreign country might find objectionable, that is a grave affront to the U.S. First Amendment.

Incidentally, as I complete my book on this awful situation, I was thinking just yesterday: You know, never once in 2006, during the time we seven badly shaken and traumatized survivors were in custody with the military in the Amazon and then at a police headquarters in the days after the crash, while we mourned the deaths of those 154 people, while we remained in custody, incommunicado, for days -- never once did anyone there express the slightest concern about us.

Anyway, here's a news report on the court action in Brazil today that finds me guilty and seeks to impose both civil and criminal penalties against me. The court also demands that I "retract" statements that, uh, I demonstrably never made.

I am very sad to say that this sorry piece of "journalism" appears today in Jornal do Brasil, a major Brazilian newspaper that once bravely distinguished itself by standing up to the ruthless military dictatorship that oppressed that country from 1964 to 1985, while much of the rest of the media was on its knees to serve the generals. Today, alas, it just prints stories that insult free speech, without bothering with the basic facts. Sic transit gloria mundi.

(Translation thanks to Richard Pedicini in Sao Paulo:)

"Courts order American journalist on Legacy to retract
Joyce Carvalho

The American journalist Joe Sharkey, who was the Legacy that collided with a Gol Boeing on September 29, 2006 - an accident that resulted in the deaths of the 154 occupants of the airliner - was sentenced to recant publicly about the offensive articles he wrote on his blog. In addition, he must pay $ 50,000 in compensation to the wife of a victim.

The case was tried on Thursday afternoon in the 9th Civil Chamber of the Court of Parana. Although the Judge José Aniceto Augusto Gomes asked for time to examine the case, there were two votes in favor of condemnation, the opinion author and appellate judge Sérgio Luiz Patitucci and appellate judge Rosana Girardi Fachin.

"Although the trial was suspended, we have the majority of the votes. Now we can only know if it was unanimous or by majority," said lawyer Dante D'Aquino, who represents Rosane Gutjahr, who lost her husband in the accident and filed the lawsuit after Sharkey's criticism on matters relating to the case. According to Rosane [My note: For some reason, the Brazilian news media are in the quaint habit of referring to women by their first names in subsequent references], the journalist offended Brazilians and wrote untrue material in The New York Times. [My note: No one has ever shown that anything I wrote in the Times, or afterward on my blog, was inaccurate. In fact, I was consistently right, from day one, about how the investigation was being botched, and air safety in Brazil was being ill-served]

The decision by the 9th Civil Chamber of the Court reversed the decision of the trial court which did not recognize the legitimacy of Rosane's request for the action of public apology and damages. From the beginning, Joe Sharkey offered no defense. At the trial today, he did not attend or send any representative.

"He was properly cited, is aware of the action and there are documents that prove this. He chose not to attend," said D'Aquino, who also represents the Association of Relatives and Friends of Victims of Flight 1907, of which Rosane is a director.

The journalist may appeal the Supreme Court (STF) within 15 days after publication of the decision of the Parana Tribunal of Justice. There are questions about the sentence because Sharkey lives in the United States. D'Aquino said that the means of execution of the sentence is by means of letters rogatory, used in bilateral agreements. In this case, the U.S. judiciary would be triggered and informed about the reversal of the sentence. Thereafter, the penalty would have to be fulfilled in that country.

"We can not say categorically that he will comply," said the lawyer. In addition to this condemnation, Sharkey was held criminally liable for offenses against the Federal Police, the federal government and the Justice Department.

Rosane celebrated the result on Thursday and said the $ 50,000 of compensation will be donated to the Association of Friends of the Hospital de Clinicas. The association works closely with the Hospital de Clinicas, linked to the Federal University of Parana. "I don't say it was a victory. My husband is dead and not coming back.

But it is a positive point in all this. The same goes for the condemnation of the Legacy pilots in the criminal area. It is an ending. The only thing that remains, and that can not be sold, is the honor, dignity, "she affirmed after the session at the Tribunal of Justice. She took the opportunity to call on the Foreign Ministry to make the sentence to be enforced effectively, interceding with the United States.

The crash

Gol Flight 1907, which was en route Manaus-Rio de Janeiro, with a stop in Brasilia, crashed in northern Mato Grosso, on September 29, 2006, killing all 148 passengers and six crew members. The accident occurred after a collision with a Legacy executive jet manufactured by Embraer, which landed safely at an airbase in southern Pará

The pilots of the Legacy, Americans Joseph Lepore and Jan Paul Paladino, are accused of not having turned on Traffic Collision Avoidance System (TCAS) equipment responsible for contact between the aircraft and the transmission towers. The indictment by the Federal Prosecutors' Office, presented in May 2007, reports that the aircraft's transponder Gol remained on throughout the flight, but the Legacy's, from a certain point, was off. The transponder is a device that interacts with the secondary air control radars and other transponders, providing information about the position and movement of aircraft.

The sequence of errors that caused the accident also went through a miscommunication between controllers and pilots of the Brazilian jet, which, not understanding the instructions, had put the aircraft at the same altitude as the flight Gol, 37,000 feet. [My note: That's not true. It is not in the slightest dispute, even by the Brazilians, that the American pilots were instructed several times by air traffic control to maintain the altitude of 37,000 feet]. In May 2007, pilots and four flight controllers were accused by federal prosecutors for the crime of attack on the security of the national air transportation. The Americans were acquitted of negligence in December 2008, but in 2010 the court overturned the acquittal and ordered the resumption of the trial.

In May 2011, they were sentenced by Justice of Mato Grosso to four years and four months in a halfway house for exposing to danger an aircraft, their own or another's, the act having resulted in death. The penalty, however, was converted to community service and prohibition from practicing their profession and would be enforced in the United States, where the pilots reside.

In 2008, flight controllers Leandro José Santos de Barros and Felipe Santos dos Reis were summarily acquitted of all charges by the Federal Court. Jomarcelo Fernandes dos Santos was also acquitted of the crime in May 2011. In the same decision, the court of Mato Grosso Lucivando Tiburcio de Alencar sentenced to community service for an attack on air transport safety.

In Military Justice, the military prosecution to determine the responsibility of five controllers who worked on the day of the accident - the four indicted by the MPF and João Batista da Silva - was begun in June 2008. In October 2010, four were acquitted - only Jomarcelo Fernandes dos Santos was convicted of manslaughter, but received the right to appeal in liberty. He appealed to the Superior Military Court (STM) and awaits trial."


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By the way, some of the less hysterical of my Brazilian antagonists keep demanding that I answer this: What do I suppose would happen if Brazilian pilots in a Brazilian plane collided with an American plane in U.S. skies?

I'm frankly baffled by their implication that American aviation authorities would have behaved like the Brazilian authorities did, rushing to criminalize the case and automatically blame the foreigners, and that the American media would wallow in a hyper atmosphere of anti-Brazilianism and defensive xenophobia.

Listen, it just wouldn't happen. Nor, I might add, is American airspace considered to be dangerous. Air traffic controllers in the U.S. are highly trained, and held to close supervision. No one in the U.S. would blame the victims who lived.

Nor would the American media pile slander and libel on a foreign reporter, a survivor of a horrible crash, who wrote honestly but critically about official inattention to any obvious problems in air-traffic safety, and any cover-up by the authorities. Instead, the American media would be doing its job, evaluating and reporting the facts, without fear or favor.

Nor, of course, would an American court ever take the preposterous position that a foreign writer is to be held to account legally for saying that America is "banana," which is one of the other fabricated charges against me vis a vis Brazil.

Banana. No "S," no article "a."

Also, I am falsely accused of having written that Brazil is a "land of tupiniquins and of bananas" (Until I looked it up, I didn't have any idea what a "tupiniquin" is. It evidently is a slang word for Brazilians, in the way the word "Yanks" is slang for Americans. At any rate, I never said it.)

Also, there is a fabricated charge that I wrote that "Brazil is a country of carnival, football, thieves and prostitutes." Never said anything remotely like that either -- but if I had, it would have been in a better English sentence than that clunker.

In the report today in Brazil's Globo, a leading newspaper, Dante D'Aquino, the lawyer for the victims' families' association in which the plaintiff is a leader, blithely repeated those ugly falsehoods. "We had not recovered the bodies of people and he (Sharkey) was saying that Brazil has only hick, that Brazil is the most idiotic of idiots, who here has only samba, carnival and prostitutes," he told Globo -- which simply took him at face value, even though it's well known that I never said anything remotely like that.

***

Meanwhile, while this case creates another smokescreen of anti-Americanism, international aviation experts say that not nearly enough has been done in Brazil to address the manifest problems with aviation safety and the horrible misery and sorrow that this malfeasance has visited upon the families of the 154 people killed in the Amazon crash, and the 199 killed just seven months later in the next Brazilian airline crash, in Sao Paulo.

Just this week, for example, the Brazilian Air Force, which is still in charge of all air traffic control in the country, reported that airplane crashes in Brazil this year are running at a record level. According to a report on Monday in Agencia Brasil (and thanks as usual to Richard Pedicini for the translation), "the period January 1 to October 31 accounted for 128 plane crashes, 17 more than in all months of last year, and 14 more than occurred in 2009 when the country registered a record of accidents."

These statistics about the record number of crashes come from the Center for Investigation and Prevention of Aeronautical Accidents (Cenipa), an arm of the Air Force. Of this year's airplane crashes so far, 106 were civilian aircraft and 22 were helicopter accidents. Of the accidents, 25 had fatalities. Thirty aircraft were destroyed.

***

As I said, my motivation from day one has been to underscore the serious issues of aviation safety in Brazil, and the culture of blame, recrimination and defensive butt-covering that prevents substantive remedial action.

Some of the angry Brazilian media continue to demand to know why I don't comment anymore to them.

Uh, Brazil media, here's a news flash for you. It's because I do not trust you, and with demonstrably good reason. Again and again since 2006, via a vis the Brazilian media, I have learned the hard way that they don't give me the courtesy of accurately and honestly reporting a comment, without twisting my words to make sure that the villain's comments comport with that nasty little fictional narrative they've been so invested in for over five years.

Just watch how the words in this particular blog post today get twisted beyond any sense of what they are meant to say.

You want a comment, Brazilian media? O.K., here it is: The charges are total fabrications, and you all have known that for years while you repeated many untruths and even fabricated some new ones -- with malice and reckless disregard for the truth, even after you have been put on notice to desist.

In my country, with the best free-speech protections in the world, that is a precise definition of libel.

For additional elaboration, please see all of the above.

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