Brazil’s Supreme Says American Pilots Can’t Be Compelled to Testify in Brazil

    American pilots Joe Lepore and Jan Paladino

    American pilots Joe Lepore and Jan Paladino 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.

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    • Show Comments (11)

    • Norman Kemble

      what?????
      Please show the posts where I say that the pilots should be criminally prosecuted?? You canˢ۪t and no one else can. Thatˢ۪s the propaganda that you and your friends post about me. I have said that I feel the pilots were not adequately trained by Excelaire and the transcripts bear that out. If the NTSB determines that training was lacking then I have said that Excelaire should be held responsible. So Grow Up

    • Simpleton

      Com Comital or just commitable (to the insane asylum)?
      Gee eal give P, so tell us forcefully if you can which of the errors in the chain lying on the Legacy crew’s side that I have mentioned and thus am “agreeing with” you about are items you feel they can be criminally charged with had it happened anywhere other than in Brazil? Not one. These propaganda articles, the Brazilian press, the Brazilian goverment “heads” aren’t after what you, I and everyone who gives a flying f are after – that stays within the industry and ultimately helps / applies everywhere even in Brazil. The yo yo’s writing and speaking to those that elected them / appointed them are after meat and bucks and public deflection / minimalization of all culpability and blame from their own side of the pond. That is all.

    • Norman Kemble

      After posting on this for months, that lack of training (international procedures, specific aircraft type, etc. for the pilots by their employer Excelaire) itˢ۪s almost surreal to find someone agreeing with me, especially Simpleton. Still doesnˢ۪t change the deaths of 154 innocent people, nor does it make me feel any better. Nor does it make me feel good. It still sickens me.

      As I have said over and over in many postings, that this is an error chain. One incident after another occurred and linked all of them into an error chain. One link being broken would have avoided this accident. Reviewing accident reports by the NTSB shows this over and over. Pointing at one thing and saying À¢€œthere they are the culpritÀ¢€Â is disingenuous at best. Error chains and good CRM have been taught for about 20 years now. It has to make everyone seeking the facts so that the problems can be fixed so that this never happens again question anyone looking to affix blame to just one component of all involved in this.

    • Simpleton

      It’s a job and somebody has to do it
      JM, while I may agree that the only culpability lies with the Brazilian ATC and their system as it is, I wouldn’t leave the crew totally unscathed for their less than ideal choices (taking off without getting all questions answered to their satisfaction), lack of chicken checking followup (not going over the charts enroute prior to BRS and seeing that what ATC last directed for a flight level for that leg didn’t match up) and possibly being inattentive / lulled into over-confidence by their brand new top of the line flight deck (and not seeing the TCAS OFF, TCAS STBY or TCAS FAIL text on their primary flight instrument where it should have appeared had they inadvertantly shut off the system, the XPNDR or the XPNDR failed and hence stopped providing the TCAS with inbound data).

      Anyhow, where do I get an application for a part in the massive job ahead? I’m ready to go and won’t charge any more than any of the Brazilian engineers I’ve had the pleasure of working with get (which ain’t much). O00PPS, forgot, the aerospace industry is heavily protected / defended from outside individuals and entities by the government.

    • John Mueller

      As a retired Air Traffic Controller who has been following this closely since it’s occurrance, there is one…and only one…culprit…the Brasilian Government and the Brasilian Air Traffic system. It is antiquated and needs replaced with compatent controllers, equipment, rules and over-seers. The Brasilian Government is looking for scapegoats instead of recognizing that their system needs a complete overhall from top to bottom.

    • Simpleton

      insinuation correction
      Sorry, I skipped / dropped a word – it. “. . .IT has to be made into a criminal conviction.”

      I admit that the theory that there has to be a conviction in order to pave the way for renumerations from the only source that could be made to pay makes an insinuation / is speculation on my part but when you play the twenty questions game and ask yourself what’s more likely, that’s what you come up with.

      The facts aren’t there as the data needed to show things conclusively one way or the other aren’t recorded by the on board systems. All that is left is the question of if the transponder got turned off or put into standby some how, why didn’t the crew see notification of such on their displays and remedy the situation? You have to ASSUME the notification was there as that’s what the system is designed to do. – negligence point 1 – they didn’t pester the shAt out of the ATC when their directed altitude contradicted the pre-flight plan and charts/rules for that airway. – point 2 – they didn’t see something that they should have seen if it were there.

    • ch.c.

      the crew f’d up and turned their transponder off has to be made into a criminal conviction. ???????
      That is your assumption and insinuation only !
      No such thing was proven yet by the Brazilians and U.S. investigators !!!!
      Ohhhhh…..yesssssss….the pampers wearing Minister Pires, also made a lot of insinuations, all revealed UNTRUE thus far !

    • Simpleton

      So where’s this going really?
      J Glenn, your TCAD is comprised of the transponder (which the American pilot’s are being accused of willfully turning off and the Brazillian controllers only now of being well aware that the one on the Legacy was not working properly) and a computer that calculates trajectory intersection potentials and avoidance guidance data (climb, dive or maintain altitude – presented via your VSI) using the altitude and speed data of ones own aircraft, the altitude data of the other aircraft transmitted by that other aircraft’s transponder along with bearing and rate of closure computations made from the two transponders automatic interactions with each other. This TCAD (or TCAS or ACAS) is intended to augment the situational awareness of the crew, directions and monitoring by the ATC controller’s, etc., etc., to avoid just what happened here – in any case, one should never become too reliant / entirely reliant on the machinery as it too may have it’s failings.

      It is a fact that you as pilots are mandatorily required to follow the directions of the ATC controllers (unless what you see out your windscreen or is advised by your TCAD guidance dictates otherwise). It is a fact that those in the government of Brazil and prosecutors do not wish for the general populace of Brazil to ever learn about / fully understand. Regardless of how weakly plausible it is that the crew f’d up and turned their transponder off has to be made into a criminal conviction. Without this there would be no way to pursue the civil suits against the American crew, the company they were under contract to and the insurance companies of same for renumerations. When all is done and said, there’s basically no hope to get any money out of the seargents, FAB, government of Brazil.

      The crew was last directed to the altitude they were at by the ATC. The crew was not advised by the ATC that their transponder which the ATC is required to monitor was apparently malfunctioning or inoperative. The crew was not regularly poled via voice communications from the ATC to report their status and intentions. If in fact the crew did do something incredibly stupid (out of ignorance or any other cause) to contribute to this, there is no proof. All prior contributions are proven and rest solely upon the shoulders of the ATC and their infrastructure. Jury dismissed.

    • João da Silva

      Jay Glenn
      [quote]In North America both Planes would have to have a Device Called TCAD. It comunicates with nearby aircraft, warnes off
      aproaching aircraft. Instructs each aircraft how to avoid each other. Not reguired in Brazil!!
      [/quote]

      Jay,both the planes were fitted with TCAD,but they failed to alert the pilots to avoid the collission.Remember the Boeing was less than 2 months old and Legacy was brand new and I would imagine that the devices were brand new and well tested. In spite of it they failed to operate. This question intrigues me and so far there has not been any explanation.

    • Jay Glenn

      I am a pilot and any change by ATC is manditory.
      I seldom file a flight plan that is not changed by ATC some times before take off.
      In North America both Planes would have to have a Device Called TCAD. It comunicates with nearby aircraft, warnes off
      aproaching aircraft. Instructs each aircraft how to avoid each other. Not reguired in Brazil!!
      Also they would not have been flying in a “black hole” yes they do exsist in Brazil!

    • bo

      charging the americans…
      for not following the written flight plan? I’m no pilot and just brainstorming here, but wouldn’t the ATC’s instructions override any previously written flight plan?

      It’s pretty plain to see what happened here, as I’ve said since the beginning, the ATC’s and the very system that existed(exists?) in brazil are the main culprits here.

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