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In court, a fight over whether those killed on Boeing jets are ‘crime victims’

The families of those killed in the Ethiopian Airlines crash hold a vigil in Washington in 2019. (Sarah Voisin/The Washington Post)
8 min

The Justice Department has argued that the 346 people killed when their flawed Boeing 737s crashed are not crime victims under federal law, even though federal prosecutors charged the company with conspiring to defraud federal regulators and the company admitted to that conspiracy.

On Friday, after months of opposition from the Justice Department and Boeing, the families of some of those killed aboard Max jets more than three years ago sought to counter that contention in a federal court in Texas.

Their objective is about more than symbolism and history: If their loved ones are deemed “crime victims” under the Crime Victims Rights Act, that would be a key step in their effort to undo a deferred prosecution agreement between Boeing and the Justice Department that the families say lets the company evade accountability.

In Fort Worth on Friday, U.S. District Judge Reed O’Connor heard testimony and accepted an expert witness report from Christopher Keyes, a former senior safety official with the Federal Aviation Administration who has said foreign regulators and airlines rely heavily on FAA documentation to shape their own safety practices and that Boeing’s actions at home had deadly results abroad in this case.

The Justice Department had argued in earlier legal filings that it could not prove beyond a reasonable doubt that Boeing’s fraud conspiracy resulted in “the crashes of two flights in foreign countries, run by foreign airlines, overseen by foreign regulators, and flown by foreign pilots.”

The immediate legal issue before O’Connor on Friday was whether those killed on Max jets were “directly and proximately harmed as a result of the commission of a federal offense,” the definition of crime victim under the act.

Under that act, crime victims have a “reasonable right to confer with the attorney for the government in the case.” Relatives of 18 of those who were killed said that right was violated and that they want Boeing executives to face prosecution.

Lawyers for the Justice Department and Boeing cross-examined Keyes on Friday, and they objected to efforts to admit into evidence official investigative reports from Max crashes in Indonesia in 2018 and Ethiopia in 2019 and the findings of a congressional investigation into breakdowns that led to the tragedies, according to Paul Cassell, a University of Utah law professor and former federal judge who is representing the families. The reports were admitted over those objections, he said.

Justice says those killed in 737 Max crashes are not crime victims

“The judge has asked us to build a record to show that Boeing’s crimes harmed the victims’ families, and today we provided the judge with hundreds of pages of records and significant expert testimony proving that point,” Cassell said, adding that the testimony and expert report from Keyes show that “Boeing’s lies caused the crashes.”

The Justice Department and Boeing declined to comment. A second evidentiary hearing is scheduled for Aug. 26 to hear testimony from two other witnesses, an airline pilot and a risk expert. It is not clear when O’Connor will make a decision.

The Justice Department has apologized to the families for not conferring with them, though it said there was no legal obligation to do so. It said officials also revised internal policies to guarantee consultation would occur in such cases in the future.

As part of the deferred prosecution agreement with the federal government signed in the final days of the Trump administration, Boeing admitted its employees “intentionally withheld and concealed” critical information about an automated flight control system, known as the Maneuvering Characteristics Augmentation System (MCAS), from an aircraft evaluation group at the FAA.

Under the agreement, the Justice Department will drop its prosecution if Boeing meets certain conditions over more than three years. Keyes, relying on a review of FAA documents and outside investigative reports and more than two decades working on safety oversight at the agency, said in his report that Boeing’s deception on MCAS led, in two distinct steps, to tragedy.

First, “Boeing’s fraudulent omission of the critical information” concerning MCAS led the Flight Standardization Board at the FAA to wrongly decide that pilots did not need extensive new training to fly Max jets, he said. The FAA board called for moderate “Level B” training, which could be done on a computer rather than more extensive and costly “Level D” training using a flight simulator.

The board decision goes to an aircraft evaluation group manager for approval, he said. Foreign airlines are not bound by the FAA decision, Keyes noted, but in practice all domestic and foreign operators of the Max jets “depend on the FAA for appropriate and accurate information.”

Second, because of that “erroneous determination” within the FAA, the pilots on Lion Air Flight 610 in Indonesia and Ethiopian Airlines Flight 302 “were not appropriately prepared to deal with the emergency presented to them and were unable to prevent the aircraft from crashing with catastrophic results,” according to his expert witness report.

“An inadequately trained pilot makes for an unsafe pilot,” his report said, adding the two crashes were caused by both a faulty MCAS and the lack of knowledge or training “on how to properly deal with” emergencies stemming from the system. In both crashes, the system repeatedly forced the noses of the planes down, overwhelming pilots who could not to keep the planes in the air, according to U.S. and foreign safety investigators.

Keyes said in his report that such emergencies need immediate action by pilots and “crew members must be so familiar with these actions that they can perform them correctly and reliably from memory.” The lack of appropriate training “put every crew member and passenger” on every Max plane “at an unwarranted risk for a catastrophic event every time they took off,” he argued.

Investigators say 737 Max crashes amount to ‘horrific culmination’

Keyes said the incentives driving Boeing’s actions, and their impacts, were clear. Boeing “intentionally disregarded” and “violated” aviation safety regulations “in their quest to keep the sale price of the 737 Max low and increase marketability,” Keyes said in his report. Due to the company’s “deception,” training recommendations were flawed “because Boeing chose profit over safety.”

Congressional investigators, in the report accepted into evidence Friday by O’Connor, found that Boeing wanted to avoid a mandate for simulator training because it was expensive and would undercut its efforts to compete with rival Airbus.

Boeing’s automated MCAS on the Max was designed to rely on a single external sensor, and faulty data from that sensor caused it to misfire, crash investigators said. The feature had been made increasingly powerful over the course of the plane’s development, and in Indonesia, the MCAS automatically pushed the plane downward “more than 20 times” in a period of just six minutes before the 737 plunged into the Java Sea, according to the National Transportation Safety Board.

According to a joint statement of facts from the Justice Department and Boeing in January 2021, the company in 2015 told the FAA aircraft evaluation group that the system could only activate in certain high-speed situations. The company later greatly expanded when the system would kick in, including flying at low speeds such as during takeoff.

“Boeing disclosed this expansion to FAA personnel, but only to those personnel who were responsible for determining whether the 737 Max met U.S. federal airworthiness standards,” according to the statement of facts. Boeing did not disclose the MCAS expansion to the FAA aircraft evaluation group, which is responsible for determinations on training, according to the statement.

The investigation led by House Transportation Committee Chairman Peter A. DeFazio (D-Ore.) found that, in addition to faulty technical assumptions by Boeing engineers and misjudgments by company management, the crashes highlighted “numerous oversight lapses and accountability gaps by the FAA that played a significant role in the 737 Max crashes.” The FAA said it does not comment on outside litigation.

Mark Forkner, then chief technical pilot for the Max, in 2016 told an FAA official by email that he was “doing a bunch of travelling through the next few months” and that he would be “jedi-mind tricking regulators into accepting the training that I got accepted by the FAA.”

Boeing chief executive David Calhoun blamed Forkner and another former employee in a statement on the deferred prosecution agreement in January 2021, saying the company regretted the conduct it described but that “it is not reflective of our employees as a whole or the culture or character of our company.”