Trial stalled for ExcelAire pilots

 - February 26, 2008, 6:19 AM

The Brazilian criminal court case against the two U.S. pilots and four air traffic controllers involved in a fatal midair between a Legacy 600 and a Gol Airlines Boeing 737-800 above the Amazon jungle in September 2006 has stalled while a judge decides whether the case will be heard in a military court or a federal criminal court, according to Theo Dias, a Brazilian defense attorney for the pilots. Brazil’s Superior Tribunal of Justice, the highest court for non-constitutional issues, was expected to make that decision last month or this month.

The conflict about who should hear the case arises from the fact that the air traffic controllers are civilians who function within a military organization. Once that decision is made, the judge needs to determine whether the trial of the four air traffic controllers will be a single case that includes the two American pilots or separate, Dias said.

ExcelAire Legacy pilots Joseph Lepore and Jan Paladino face charges under the Brazilian criminal code that they unintentionally caused the endangerment of an aircraft through negligence. “We feel that they [the pilots] will be proven to have acted professionally and have no fear of conviction,” said Dias. Cenipa, Brazil’s aviation accident investigation agency, said inspection of the equipment showed that the transponder was in working order but not operating at the time of the collision.

The two airplanes collided, killing the 154 passengers and crew on the 737. The Legacy sustained minor damage; there were no casualties among the seven people aboard.

Joel Weiss, the pilots’ lawyer in the U.S., says that they didn’t do anything to turn off the transponder. “There seems to be no evidence to suggest this,” he said. Since the crash, the FAA has advised publicly that transponders on Embraer Legacys can be switched off by pilots placing their feet on a footrest below the instrument panel and inadvertently nudging the radio management unit tuning control.

Moreover, Weiss said, “The accident was caused [by] air traffic controllers who allowed the two airplanes to fly at the same altitude in the same area without informing the pilots or sectors.” One of the controllers is charged with extreme recklessness and could receive a prison sentence of 34 years, he added.

Dias is also fighting for the pilots’ right to be heard from the U.S. for the trial. He maintains that immediately after the collision, the pilots were treated like suspects, to the extent that their passports were confiscated so they could not leave the country for 10 weeks.

According to Dias, the pilots have cooperated fully with the authorities since the midair. In late January, they spoke to Cenipa investigators for some 20 hours over the course of three days in Washington, D.C. The pilots listened to two hours of recordings from their jet’s black box and responded to a detailed questionnaire. Cenipa said that it would cross-reference the information the pilots supplied with other information to construct possible scenarios which could have caused the transponder to stop working.

Cenipa’s investigation is in its final phase and the report is expected in the coming months. Gol and ExcelAire declined to comment on the accident while the investigation is ongoing.

Dias and Weiss believe that the criminal investigation running alongside the crash probe can hamper the process to determine the cause of the accident. Weiss cites the fact that Cenipa wants to interview the air traffic controllers, but the controllers have been advised by their lawyers to remain silent so as not to prejudice their criminal trial.

Echoing pilots’ associations and safety organizations, Dias said the best practice is to
investigate the accident first and conduct the legal proceedings afterwards. Weiss added that when a criminal investigation is taking place, the people involved often clam up. “It creates a blame game, rather than curing the problem,” he said.