Brazilian Judge Finds U.S. Pilots Guilty in 2006 Fatal Midair

 - May 17, 2011, 10:25 AM

Yesterday, Brazilian federal judge Murilo Mendes found American pilots Joseph Lepore and Jan Paul Paladino, whose Embraer Legacy 600 collided with a Gol Airlines Boeing 737-800 over the Amazon in September 2006, guilty of failing to verify for more than an hour that the Legacy’s transponder was functioning.

The judge commuted a sentence of four years and four months into community service to be performed in the U.S., and he also suspended the pair’s pilot licenses. It is yet unknown whether the Brazilian sentence is enforceable in the U.S.

Lepore and Paladino were found innocent of five of the six charges against them, including failing to follow the flight plan, turning off the transponder and not reacting correctly to a communications failure. Additionally, the judge discarded allegations that the TCAS was never on during the flight and that the pilots falsely affirmed that the Legacy was authorized to fly RVSM. Pilot-in-command Lepore and copilot Paladino had just taken delivery of the Legacy for their employer–charter operator ExcelAire of Long Island MacArthur Airport, New York–and were ferrying the aircraft to the U.S. when the midair occurred.

Judge Murilo issued identical verdicts for Lepore and Paladino, saying the pilots bear equal responsibility for safety. The pilots will appeal the verdict. Murilo will also rule this week on the fate of the two air traffic controllers still charged in the case, one of whom a military court has found guilty of manslaughter, delivery a sentence of 14 months imprisonment.

The guilty verdict turned on the question of whether a white “TCAS OFF” alert appeared on the Legacy’s panel, and the judge based his ruling largely on an exchange from the cockpit voice recorder: “Dude, you got the TCAS on?” followed by: “Yes, the TCAS is off.” While ATC has primary responsibility for verifying the transponder function, the judge ruled that this does not free the pilots of blame.

What worries safety experts about this conviction is the criminalization of accidents. Here at EBACE, AIN spoke with NBAA senior vice president of operations Steve Brown about this concerning trend.

“Criminalization has a chilling effect on safety enhancements in the aviation community. We rely on willing participation by those involved in an accident to avoid repeat accidents,” Brown said. “It is no benefit to anyone to criminalize aircraft accidents. We have to preserve the safety culture and science and discipline in accident investigations to result in a positive safety outcome.”

Brown said Brazil’s “different” legal system allowed for yesterday’s conviction, even though NTSB and Brazil ANAC accident reports show that the errors made were by the Brazilian air traffic controllers. All 154 aboard the Gol 737 perished in the accident, while Lepore and Paladino were able to land their crippled Legacy at a Brazilian military airport.

Listen to a podcast interview with Brown on this topic.