The Justice Department violated the rights of passengers killed on Boeing 737 Max planes when the federal government reached a deferred prosecution deal with the company in 2021, a federal judge ruled Friday.
The ruling marks a broad repudiation of the approach taken by Justice Department officials in the case.
Family members and lawyers of some of those killed have called on the judge to throw out the Justice Department’s deferred prosecution agreement with Boeing. As part of that agreement, Boeing admitted to conspiring to defraud federal regulators, but the company would be immunized from being prosecuted for that conspiracy if it meets the terms of the deal, which was signed Jan. 6, 2021.
In a sharply worded opinion, O’Connor said the evidence was clear that Boeing’s admitted conspiracy led to the deaths of hundreds of people.
“The Court finds that the tragic loss of life that resulted from the two airplane crashes was a reasonably foreseeable consequence of Boeing’s conspiracy to defraud the United States,” O’Connor wrote.
Paul Cassell, a University of Utah law professor and former federal judge who is representing the victims’ families, said the Justice Department had engaged in a “major, deliberate and orchestrated violation of a law that requires that crime victims be involved in crafting these kinds of arrangements.” He added: “The government and Boeing both had multiple lawyers working on this secret deal, and now the judge has made clear that secrecy was a gross violation of federal law.”
The Justice Department and Boeing officials declined to comment.
Some family members said late Friday that they are seeking prosecution for Boeing and its executives.
“Families like mine are the true victims of Boeing’s criminal misconduct, and our views should have been considered before the government gave them a sweetheart deal,” Naoise Connolly Ryan, whose husband, Mick, was killed in the Ethiopia crash, said in a statement.
Michael Stumo, whose daughter Samya was killed in the crash outside Ethiopia’s capital, Addis Ababa, said in a statement that “Boeing captured the FAA to get the deadly MAX 8 certified. They captured the Department of Justice under Trump and Biden to deny crash families’ rights to participate in the criminal investigation and prosecution. They thought they could capture a federal judge in Fort Worth, Texas.”
Stumo said Attorney General Merrick Garland “should order a new investigative team to re-do the entire criminal inquiry against Boeing.”
The question before O’Connor was whether those killed in the Boeing jets were “directly and proximately harmed as a result of the commission of a federal offense,” which is the definition of a victim under the Crime Victims’ Rights Act.
The Justice Department argued in court 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.” O’Connor disagreed.
He wrote that Boeing’s lies to a group within the Federal Aviation Administration about when an automated flight control system would activate resulted in lower pilot training standards on the new planes. Because of Boeing’s conspiracy to defraud, O’Connor said, U.S. regulators didn’t require simulator training and other warnings to pilots that the Maneuvering Characteristics Augmentation System (MCAS) could activate at low speeds.
The judge cited the global effects of decisions made by American aviation regulators, noting Boeing’s comment that “FAA is pretty powerful and most countries defer to what the FAA does.”
“Had Boeing’s employees not concealed their knowledge about MCAS, the [FAA’s Aircraft Evaluation Group] would have certified a more rigorous level of training, pilots around the world would have been adequately prepared for MCAS activation, and neither crash would have occurred,” O’Connor wrote. He added that “an adequately trained pilot could have quickly averted the crises” using other tools in the cockpit to override the errant system and save the nosediving planes.
Under the Crime Victims’ Rights Act, victims — or, in this case, their survivors — must be provided a “reasonable right to confer with the attorney for the government in the case.” They also have the right to be informed “in a timely manner” of a deferred prosecution agreement or plea bargain.
O’Connor gave both sides until Oct. 28 to indicate whether they will submit additional information on how they believe he should remedy the violation of the law.
Cassell said the standard remedy is to invalidate at least part of the agreement.
“This is a big deal for the crime victims’ rights movement in America,” Cassell said. “That will be a signal that crime victims can no longer be ignored in this process, and will have a voice, loud and clear, when these kinds of agreements are negotiated.”
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