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Those killed in 737 Max crashes aren’t ‘crime victims,’ Justice says

Justice officials told a judge that the agency’s case against Boeing didn’t prove the company’s misdeeds were directly related to the crashes

Relatives of people killed in the Ethiopian Airlines crash hold a vigil outside Transportation Department headquarters in Washington in 2019. (Sarah L. Voisin/The Washington Post)

The Justice Department last year charged Boeing with a crime after the company admitted its employees deceived federal safety regulators about software on its 737 Max planes.

In a January 2021 news release, the leader in the department’s criminal division, David P. Burns, said the resolution of the case “holds Boeing accountable for its employees’ criminal misconduct.” But in a legal filing this year, and in a Texas courtroom this week, the Justice Department argued that the 346 people killed when Max planes crashed in Indonesia and Ethiopia are not “crime victims” under federal law.

At issue is an effort by relatives of those killed to throw out an agreement signed in the final days of the Trump administration under which the Justice Department would defer — and eventually drop — its prosecution on the count of conspiracy to defraud the United States if Boeing met certain conditions over more than three years.

The effort to protect that agreement has created a peculiar dynamic, with the Justice Department repeatedly telling a federal judge that its case against Boeing didn’t prove the company’s misdeeds were directly related to the crashes.

The department’s resistance to deeming the dead “crime victims” was criticized by some at both ends of the political spectrum. Conservative lawyer Bruce Fein, a Justice official under President Ronald Reagan, called it “absolutely absurd,” while longtime liberal activist Ralph Nader, whose grandniece was killed on one of the flights, said it reflects “the further debasement of the Justice Department’s sweetheart relationship with corporate criminals.”

The Justice Department declined to comment.

Boeing admitted as part of its deferred prosecution agreement that its employees had “intentionally withheld and concealed” key information about an automated flight control system from a group at the Federal Aviation Administration. Flaws in that system repeatedly forced the noses of the planes down, overwhelming pilots, according to crash investigators.

Relatives of 18 of those who were killed have asked U.S. District Court Judge Reed O’Connor, in Fort Worth, to rule that their rights under the Crime Victims’ Rights Act were violated. Under that act, crime victims have a “reasonable right to confer with the attorney for the Government in the case,” as well as the right to be informed in a timely manner of any deferred prosecution agreement.

Long before the Max disasters, Boeing had a history of failing to fix safety problems

If the victims’ families were allowed to confer, “they would have presented the Government with evidence exposing the pervasiveness of Boeing’s wrongdoing,” according to a filing on behalf of the families. “Rather than reach out to grieving crime victims’ families, the Government secretly devised a favorable deferred prosecution agreement with Boeing.”

In response, the Justice Department has apologized to families, but said it was in a “challenging situation.”

“The Government apologizes for not meeting and conferring with these crash victims’ beneficiaries before entering into the [deferred prosecution agreement] even though it had no legal obligation to do,” according to a legal filing. It added that officials have spent months revising internal policies that will “ensure that if this situation arises in the future, consultation and notice will occur.”

But in the case of the 737 Max crash victims, the law was clear, the Justice Department argued, saying the Crime Victims’ Rights Act narrowly defines a crime victim as someone who has been “directly and proximately harmed as a result of the commission of a Federal offense.”

The Justice Department’s stance was described in a February filing, which said “there was no doubt that Boeing had conspired to defraud the federal government when it deceived the FAA Aircraft Evaluation Group.”

That division is largely responsible for determining the minimum level of training required for pilots. Prosecutors said Boeing did not want pilots flying its 737 Max planes to have to undergo expensive simulator training before operating the new aircraft, leading to fraud by its employees.

But the Justice Department said its investigation didn’t produce evidence to prove beyond a reasonable doubt what factors caused the crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302. The department added that it could not prove to that standard that there was a “direct and proximate connection” between Boeing’s fraud affecting U.S. pilot training and “the crashes of two flights in foreign countries, run by foreign airlines, overseen by foreign regulators, and flown by foreign pilots.”

In a letter to the court, Sen. Ted Cruz (R-Tex.) said “the government’s position is simply nonsensical,” adding that “it is likely that the crashes would never have occurred if Boeing had been honest with regulators about the problems” with the automated system, known as MCAS.

The Justice Department noted that as a condition of the settlement agreement, Boeing was required to establish a $500 million fund to compensate the victims’ beneficiaries, make large payments to customers and cover penalties. The company is subject to additional department oversight and must make regular progress reports on preventing future fraud.

Family members of those killed and their advocates say Boeing’s broader culpability has been established in crash investigations and a congressional probe, and should be further explored in court.

Boeing 737 Max crashes were ‘horrific culmination’ of errors, investigators say

The families are asking the judge to independently evaluate the Boeing agreement, force the disclosure of additional information and require that Boeing be arraigned in court like any other criminal defendant.

Paul G. Cassell, a University of Utah law professor and former federal judge who is representing the families, said the Justice Department reiterated its apology in the Texas courtroom this week and noted the department’s pledge to consult with families in the future. Cassell said he wants justice for families in this case and for them to shape the outcome.

“We’re seeking to have the deferred prosecution agreement invalidated so we can convince the Justice Department to prosecute Boeing for the serious and deadly felony crimes they committed,” Cassell said.

Boeing declined to comment.

Michael Stumo, whose daughter Samya Rose Stumo was 24 when she was killed in the crash outside Addis Ababa on March 10, 2019, sat in the courtroom Tuesday.

Stumo said he wants a path to hold the company and top executives “accountable for manslaughter for Samya and the other passengers. They consistently evade responsibility and are let off the hook,” he said.

After hearing arguments on the motion this week, O’Connor said he will consider the issues and rule soon.