Ellen Gracie Northfleet, the chief of the Brazilian Supreme Court (STF), told the president and the reporter of the Air Blackout Congressional Inquiry, House representatives Marcelo Castro and Marco Maia, that Brazil's Justice has no means to compel Americans Joe Lepore and Jan Paladino, the pilots of the Legacy executive jet, which collided with the Boeing 737 last September, to travel to Brazil to testify before the congressional committee.
The collision led to Brazil's worst air accident ever, which caused the death of the 154 passengers and crew aboard the plane when the Boeing fell in the Amazon jungle. The two pilots and the five passengers aboard the little jet were spared and were able to land safely in a Brazilian Air Force base airport.
The congressional inquiry is probing not only the Boeing tragedy but also the whole Brazilian air transportation system, which went into a state of chaos in several occasions since the plane accident over the Amazon.
According to Northfleet, who is the grand-daughter of an American confederate soldier who went to Brazil after the US Civil War, the cooperation agreement on penal matters between Brazil and the United States doesn't give the congressional committee the right to summon Americans to testify in Brazil.
"This is our main problem at the moment," complained representative Maia. "From a juridical point of view and from the agreements signed by Brazil with other countries, we have no guarantee that we can indeed hear the pilots."
The Supreme Chief suggested that the congressmen appeal to the Foreign Ministry of the Brazilian embassy in Washington to convince Lepore and Paladino to travel to Brazil. If everything fails the inquiry committee will try to fly to the US to get the American pilots testimony. Still another option would be to grill them via videoconferencing.
Just last Friday, Brazilian federal judge Murilo Mendes, from Mato Grosso, the state where the Boeing fell down, indicted the two Americans for involuntary manslaughter. Four Brazilian air controllers, all of them Air Force sergeants and all working at Brasília's air control center, known as Cindacta 1, were also indicted by the same judge.
While three of the flight controllers are being charged with involuntary manslaughter, one of them is being accused of intentional manslaughter.
Judge Mendes determined that the pilots would be interrogated on August 27 and made it clear that they would have to travel to Brazil for that "not being allowed that the act occur at their native country – the United States."
In the court filing, prosecutor Thiago Lemos de Andrade stated that the negligence of the six men caused the collision between the Legacy and the Boeing. According to the charge, air controller Felipe Santos dos Reis gave wrong instructions to the American pilots, not telling them about the Legacy's altitude changes.
Jomarcelo Fernandes dos Santos, another air-controller indicted. was responsible for monitoring the area in which the Legacy jet was flying, about one thousand feet above the altitude it should be. Santos is accused of not alerting the US pilots about their wrong altitude.
More than that, the prosecutor says, Santos informed "consciously and willfully" the controller who took over from him that the jet was at 36 thousand feet of altitude feet, when actually it was at 37 thousand feet. Therefore, on the wrong way, since the odd altitude is reserved for planes coming to Brasília and not going from Brasília as it was the case.
Lucivando Tibúrcio de Alencar, the air controller who replaced Santos, was charged for taking too long to attempt a contact with the Legacy – about ten minutes after starting his shift – even though he was aware that the jet's transponder wasn't working properly. The last air controller charged was Leandro José Santos de Barros, Alencar's assistant.
Lepore and Paladino are being charged mainly for their use of the transponder and for not following the written flight plan. The prosecution says that both didn't know how to use the plane's equipment and that they ended up turning the transponder off unintentionally.
As the prosecution put it, "For not knowing how to operate some items in the plane, they ended up deactivating by mistake the transponder. To this momentary active ineptitude followed a long omissive negligence."
The penalty for involuntary manslaughter is from one to three years in jail, but aggravating factors might lead to up to six years in prison. As for willful manslaughter, as one air controller is charged, the penalty can vary from 8 to 24 years of detention.
