More on Brazil federal judge Murilo Mendes's amazing verdict from its voluminous 86 pages shows just how far the judge went in exonerating the American pilots on the most serious charges, while convicting them on a single lesser count.
[Translation from Richard Pedicini in Sao Paolo]
The judge leaves no doubt that the pilots were correct in their assertion that they were at the altitude assigned to them by Brazilian air traffic control:
He wrote: "The information was excessively clear. The expression 'permission for Eduardo Gomes' leaves no doubt that the control tower was ordering the pilots to fly at level 370 [that's 37,000 feet, my note] to Manaus. It's a very categorical piece of information.
"If the flight level came unequivocally, but without an indication of the final destination, it would be comprehensible to demand that the pilots question the authorization, that they seek additional clarification, that they ask if the level were to be used only to Manaus or if it serves for the whole route. But no. Mister João Batista [a controller] made the affirmation stripped of any ambiguity. Mister João Batista, furthermore, responsible for this tremendously gross error, decisive for the outcome that was seen, was not even indicted by the Federal Prosecutors' Office.
"Given the lack of an accusation against him at the trial level, I sent the case to the Prosecutor-General. And the Prosecutors' Office understood that João Batista is not guilty of anything. The Prosecutors' Office is one and indivisible. The word of the Prosecutors' Office is one only. It is not divided in as many opinions as it has members. If the Prosecutors' Office did not, at its highest level, wish to indict the controller responsible for the scandalously false information on the flight level, is it legitimate to want to blame the pilots, when the power "to confuse" of the message passed by the tower is evident? He who says "permission to Eduardo Gomes" and adds, immediately, the flight level, is saying to the pilot that he should fly to Manaus at that level.
"Is there any doubt about this? For me, no. [...] it would be at the very least unjust to not punish the one directly responsible for false information, the one with active conduct (who committed it), and to condemn the one who received the incorrect message, with evident potential to mislead the addressee (who practiced omissive conduct)? This is, after all, what wound up happening."
The judge sentenced the two Americans to four years and four months of prison, which was commuted to four years and four months of community service in a Brazilian office within the United States. The judge also directed that the pilots' flying licenses be revoked.
That sentence is, naturally, unenforceable in the United States, where a Brazilian court has utterly no jurisdiction. Dopey U.S. media accounts like that by the A.P. have reported the community service in the U.S. assertion without noting the absurdity of a Brazilian judge from some Amazon backwater city presuming he has any standing whatsoever within the United States.
To which I now add, court is adjourned.
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Showing posts with label unenforceable sentence. Show all posts
Showing posts with label unenforceable sentence. Show all posts
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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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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