The court turned down a petition by the Federal Public Prosecution (MPF) to lengthen the sentence imposed on the two convicts based on the number of victims. It has also rejected the MPF petition for preventive detention of the two pilots, who live in the United States.

A lower court had already reduced the condemnation of the American pilots, determined by the Federal Court of Mato Grosso, which initially was of four years and four months in prison for manslaughter.

While federal prosecutors asked the Supreme Court to increase the penalty for Americans, the Defense wanted a reduction and replacement of jail time by a sentence restricting the pilots rights.

Antonio Augusto Aras, the Assistant Attorney General of the Republic, argued that the sentence should be increased due to the violation of technical rules of piloting that ended up causing all the deaths of the Boeing.

The assistant prosecutor and the attorney for the Association of Relatives and Victims of the Accident, former Supreme Court Justice Nilson Naves, also defended an increase in the penalty, reminding that the pilots had caused the second largest plane crash in Brazil’s history.

The minister rapporteur, Laurita Vaz, decided to deny the appeals from the defense and the prosecution, According to Vaz, the penalty applied by the Federal Court of Appeal cannot be considered unreasonable.

The pilots’ lawyer, Theodomiro Dias, criticized what he called “contradiction” in the position of the rapporteur. In December 2013, Vaz had asked that the sentence be reduced to two years and four months of detention.

The Ministers of the Supreme criticized Brazil’s penal legislation, but informed that the penalty could not be increased due to the number of deaths because this fact has already been taken into consideration in earlier phases of the proceeding.

Lepore and Paladino live in the United States. They were detained for some time in Brazil, but traveled back to their country in December 2006, the year of the accident. Despite their promise to go back to Brazil to submit themselves to the Brazilian authorities they have refused to do this.

Given that the two American pilots of the Legacy 600 are now on trial, in
absentia, on criminal charges that carry prison time in Brazil, it’s interesting
to see how conventional wisdom has finally evolved in Brazil to accommodate
realities that were violently in dispute for many months after the September 29,
2006, crash.

Take this article by Concetta Kim Martens of the Council on Hemispheric Affairs, a think-tank whose interests include “the formulation of rational and constructive U.S. policies towards Latin America.” The article was published on the organization’s Web site, www.coha.org, and republished by Brazzil Magazine (www.brazzil.com), where it drew lively reader comment.

Obviously, I have no quarrel with the essence of the article.

That’s because nearly every assertion in it was first made a long time ago on this blog. But that was way back when no one else in the media was even raising the issues of the soundness of Brazil’s air-traffic control system, or criticizing the reckless rush by the Brazilian government, military and Federal Police to criminalize the September 29 accident and scapegoat the American pilots.

Now that accuracy is winning the battle, we need to encourage perspective to march forward. So I need to point out that the COHA article, while essentially correct in its points, shades history a bit. And as I sense we are nearing the point where journalism must tip its fedora to history, I am sure Ms. Martens will forgive my nit-picking.

For one thing, she muddies the facts a bit on the demeanor of air-traffic controllers after the accident. “Since the September 29 Gol crash over the Amazon, controllers felt unfairly targeted for splenetic criticism they were receiving from the public, and reacted by staging several work stoppages …” she writes.

Didn’t happen quite that way.

Here is what did happen:

First the American pilots were recklessly and, it seemed to me universally, scapegoated. It took a while for the public in Brazil to become aware of, or concede, the role of air-traffic control in the accident.

Remember how long the ex-defense minister, Wonderful Waldir Pires, loudly insisted that the pilots caused the crash by performing reckless aerial loop d loops over the Amazon? Nobody in power told him to put a lid on that nonsense, including his boss, the President, who won a runoff election amid the passions of the disaster, which had occurred two days before the polls opened.

Only in time did the general public, but not the authorities, acknowledge that the September 29 crash had been set in motion by a series of egregious errors by air traffic controllers, who themselves were working in deplorable conditions with faulty equipment within a system beset with major technological deficiencies in radar and radio communications, especially over the Amazon.

Initially, as I argued last October, November and afterward, the air-traffic controllers’ protests were basically a warning shot across the bow of government and military to not implicate air-traffic control in the blame.

What actually happened was that low-ranking controllers – fearing that they, too, might become scapegoats along with the pilots (which in fact ultimately happened) – clammed up while the American pilots remained in custody in Brazil.

While the pilots twisted in the wind, the core group of controllers who were on duty during the accident – the people who knew, for example, that air-traffic control was aware of the transponder malfunction on the Legacy for 50 minutes before the crash and failed to raise the alarm – remained silent, went to ground and refused to answer any questions, citing psychological trauma.

As the protests continued for months, air traffic in Brazil was thrown into chaos.

For months after the September 29 accident, public sentiment, whipped up by xenophobic Brazilian media, had focused sharply and exclusively on the Americans as culprits. There was no “splenetic criticism” in Brazil of the air traffic controllers that I am aware of. Of course, I was raising criticism of air traffic control on this little blog. It wasn’t splenetic – though the outraged and verbally violent reaction to it certainly was.

Ms. Martens does zero-in effectively on some of the official nitwits who continually brayed that all was well in Brazil’s skies; that the September 29 disaster was caused strictly by reckless, arrogant Americans; that Brazil’s skies and airports were under world-class supervision and that to say otherwise was a base calumny and an insult to the honor of the nation.

Of course, the official indignation all rang a bit hollow again in July, when another airplane crash killed 199 people at overcrowded, unsafe Congonhas Airport in São Paulo, Brazil’s busiest.

Wonderful Waldir Pires, the obstinate Defense Minister responsible for air-traffic control, was finally out the door. So was José Carlos “Sunshine” Pereira, who ran the airports authority and suggested that it was slander to suggest that anything, anything might be wrong with Brazil’s aviation system.

Sunshine Pereira ranks right up there near Wonderful Waldir as a classic character in this story. Pereira steadfastly insisted after the September 29 crash, even as the evidence became manifestly clear that both aircraft had been put on a collision course at 37,000 feet by air traffic control, that “it is not the best moment to carry out changes” including addressing the inept military control of civilian aviation.

Later, as international aviation groups expressed outrage at the way Brazil had clumsily politicized and criminalized the September 29 accident, and even after the second horrible accident in July, with 350 now dead in two disasters in 10 months, Sunshine Pereira stood by his rusty guns.

“Brazil does not need international help,” he proclaimed, inanely. “The crisis is ours. The dead are ours.”

Shortly after, he was ducked-walked off the deck.

But as Ms. Martens writes, the President remained in a defensive crouch. “The security of our aviation system is compatible with all other international standards,” Lucky Lula proclaimed. As recently as three weeks ago, Lucky Lula was still scoffing at the fact, otherwise widely accepted all over the world, that there are black holes and blind spots in air-traffic control radar and radio communications over the Amazon.

I assume Ms. Martens’ small deficiencies in context and nuance are a consequence of the demands of concise summary. She writes: “President da Silva’s government has come under a great deal of fire for failing to properly address the nation’s air-travel safety, an act that according to several aviation experts, and the adamant belief of a good deal of the public sentiment, led to the air disaster” [s]

Well, I’m here to repeat, for the record, that this “public sentiment” took a long time getting its socks on, and even longer to reach the level of being “adamant.”

And I should also point out that, while public sentiment may well have finally come around to the truth, as Ms. Martens asserts, two American pilots remain on trial on spurious criminal charges that public sentiment realizes were trumped-up.

Joe Sharkey writes, mostly about travel. He has been a columnist for the Philadelphia Inquirer, a reporter and editor for the Wall Street Journal and a columnist for the New York Times. On September 29, he was one of seven people aboard a business jet involved in a mid-air collision with a commercial Boeing 737 over the Amazon. All 154 people on the 737 died, while the business jet managed to land at a jungle airbase. Sharkey’s account of the crash appeared on the front page of the New York Times and later as a 4,000-word magazine article in the Sunday Times of London. Comments can be sent to  Sharkey_Joe@yahoo.com.

This piece appeared originally at “Joe Sharkey: Brazil,” one of the author’s blog, which can be found in  http://sharkeyonbrazil.blogspot.com.

fThe Brazilian House of Representatives's commission in the 200-page report is recommending that Joseph Lepore and Jan Paul Paladino, the two American pilots, be indicted for murder. They are considered the main culprits of the accident for having – as the report concluded – turned off the Legacy's transponder, equipment connected to the plane's flight control system.

Lepore and Paladino are accused of acting with malice. Although they had no intention to kill anybody, the document says, they knew their action posed that risk.

As for flight controllers Felipe dos Santos Reis, Leandro José Santos Barros, Lucivando Tibúrcio de Alencar and Jomarcelo Fernandes dos Santos from Brasí­lia's Air Control Center they are also considered guilty and the CPI recommends that they be indicted for involuntary manslaughter for their negligence.

The Federal Public Prosecutor's Office had asked that Jomarcelo be charged with intentional felonious homicide, but the CPI's reporter, Marco Maia, from the Workers Party said that the congressional committee didn't agree with that decision.

"The controllers also failed," said Maia, "especially when they handed over the information and when they didn't follow all the legal rules. But the crime they committed didn't carry any criminal malice."

Maia believes that by turning off the transponder the American pilots contributed decisively to the accident. "The truth of the matter is that the transponder was turned off and this is an instrument of major importance for safety. Another consideration is that the aircraft commander is the one responsible for the flight. He needs to be attentive to all the situations," said the representative.

"All the elements show that the transponder was off and that both pilots were in a wrong way course," added Maia.

The American pilots responsibility, ponders the legislator, is even bigger when you consider that the pilots didn't know the Brazilian air space, had little knowledge on how to operate the Legacy's equipment and had a "very low situational awareness" in the hours leading to the accident.

Maia informed that after the Congress recess, from July 18 to August 1st, the Air Traffic Blackout Inquiry will start a new stage in their investigation. In this second phase the inquiry will concentrate on three specific themes: air space control system, the establishment of regulations for the sector and examination of the contracts signed by Infraero, the state-owned company in charge of the Brazilian airports.

On September 29, 2006, Gol Airlines Flight 1907, a Boeing 737, went down with the loss of all 154 aboard following a mid-air collision with an Embraer Legacy 600 operated by ExcelAire Service of Ronkonkoma, New York.

The ExcelAire jet piloted by American pilots Joe Lepore and Jan Paladino landed safely at a remote military airfield.

"Criminalizing the accident investigation process," reads the APA statement, "establishes an extremely unfortunate precedent and is a terrible mistake. Accident investigations should be conducted based on widely accepted International Civil Aviation Organization (ICAO) Annex 13 guidelines, rather than as a criminal proceeding.

"The goal of any accident investigation should be to determine the accident’s cause to prevent a recurrence. Criminalizing an investigation will almost certainly have a chilling effect on the willingness of involved parties to be forthcoming with critical information.

"Accordingly, we urge the Brazilian authorities to rethink their approach to determining the cause of this tragic accident."

Founded in 1963, the Allied Pilots Association – the largest independent pilot union in the U.S. – is headquartered in Fort Worth, Texas.

The association represents the 12,000 pilots of American Airlines, including 2,688 pilots on furlough. The furloughs began shortly after the September 11, 2001 attacks.

Also, several hundred American Airlines pilots are on full-time military leave of absence serving in the armed forces. American Airlines is the nation’s largest passenger carrier.

This Friday, May 25, he has asked a federal judge in the state of Mato Grosso, where the Boeing fell, to indict six people: four Brazilian flight controllers and the two American pilots. Andrade says that these six men's imprudence and negligence are the reason for the collision between the two planes.

The military justice prosecutor, Giovanni Rattacaso has announced that the whole case will be taken care by the civilian justice. For some time it was believed that the flight controllers, the great majority of which are military men, would be dealt with by the Brazilian Air Force.

Among those being formally charged is Air Force sergeant Jomarcelo Fernandes dos Santos, a flight controller from Cindacta 1, Brasí­lia's flight control center. Santos and everybody else should be indicted for "willful crime of assault against aircrafts security." In Santos case there are aggravating circumstances though.

He is accused by the prosecution of exposing the flight to danger "knowingly and in a voluntary manner." Santos is regarded as the main culprit for the accident. According to the prosecution, the flight controller handed over the Legacy's flight plan to the other controllers, without telling them the aircraft altitude should be changed, which contributed to the collision.

While the pilots and three controllers, had their crime characterized as culpable negligence, Santos crime was characterized as malicious. "I understood that Jomarcelo's conduct was willful, that it was conscientious and voluntary. He knew very well that he was putting at risk the aircraft," said the prosecutor.

The three other Air Force sergeants who were working at Cindacta 1 at the time of the accident and are also being charged are Lucivaldo Tibúrcio de Alencar, Leandro José Santos de Barros and Felipe Santos dos Reis. American pilots Joseph Lepore and Jan Paul Paladino complete the list.

The prosecutor says that he is going to ask the judge that the American pilots be heard in Sinop, in Mato Grosso State, according to the bilateral cooperation treaty between Brazil and the US.

The prosecution also says that it concluded that Lepore and Paladino turned off the Legacy's transponder, something that was noticed only after the accident. The American pilots are also accused of not following the flight plan. 

Federal Judge Murilo Mendes, from Sinop in the state of Mato Grosso, should announce next week if he will accept or not the indictment request. It's expected that he will say yes based on the federal police's inquiry.

Before returning to the United States, in December 8, Lepore and Paladino had already been arraigned by the Federal police for "exposing to danger vessel or aircraft," even though authorities concluded at the time that they had not done that intentionally.

At that time the Federal Police investigation was still going on. Police chief Renato Sayão only concluded his effort on May 7. In the 41-page final report, however, Sayão maintains that Lepore and Paladino should be blamed for the planes collision. If convicted of the crime, both pilots might get from four to eight years in jail.

Theodomiro Dias Neto, the criminologist who heads the two pilots' defense team reacted indignantly to the prosecutor's announcement:  "It's nonsense that the press knows about this beforehand," he said.  "Anyway, it seems premature to me to file charges without knowing the result of the technical investigation being done by the Aviation Accidents Investigation and Prevention Center (Cenipa).

"The pilots reiterate the purpose of demonstrating that they acted with professionalism, in conformity with the international rules of aviation, and they believe in the judicial recognition of their innocence."

In a press release distributed yesterday, April 26, the association says that they are seeking signatures asking for support from the people so that Brazilian authorities will conclude, "quickly but justly," the investigations and then inform the community and the relatives about the results that have yet to be published.

The signatures will be delivered to the Minister of the Justice of Brazil, Tarso Genro, in the first week of May, with the "intention of preserving the constitutional rights of the victims of the tragedy that occurred on September 29, 2006" says the document.

This petition is being put together by Rosane Gutjhar, in partnership with the Association Vice-President, Angelita de Marchi. Their primary focus will be the assignment of responsibility.

Seven months after the accident allegedly provoked by the Legacy Jet, part of the American company ExcelAire, nothing has been explained, comments Rosane Gutjhar. "We have mounds of paper, but no conclusion. We want to see the guilty parties punished for they have taken innocent lives and no money in the world will restore that," she points out.

This week, there will also be a trial in Brazil's Superior Tribunal de Justiça (STJ) seeking to release the information contained in the investigation done by the Brazilian Air Force to the families of the accident victims.

"The information therein contained is crucial for the families’ interests," explains lawyer Leonardo Amarante. The families do not have the details of the investigation, including the contents of the aircraft black box, or the results of the tests performed on the pilots or the Legacy Jet inspection.

Leonardo Amarante is the lawyer of the office that represents the 50 Brazilian victims families of Gol 1907 Flight in Brazil and in the U.S. He is also the lawyer of the vice-president of the Association of Friends and Relatives of the GOL 1907 Flight Victims, Angelita Rosicler de Marchi.

The Brazilian Federal Police requested an additional 60 days to present the police investigation results. It will not be until after the close of the investigation process that the suit against those involved will be filed with the Public Ministry of Brazil.

The manifesto written (in Portuguese) by the Association can be found at www.petitiononline.com/voog1907/petition.html.

For Dias, the analysis of Joseph Lepore and Jan Paladino's dialogues published by Folha cannot be considered an indication that they were unprepared or had little experience in piloting the Legacy.

"When you read the conversations, which were transcribed in a truncated way and very badly translated, everything gets the wrong dimension. The pilots were never lost and they had enough familiarity with an airplane like that one. The rest are just assumptions."

The pilots' lawyer blames the São José dos Campos control tower, the place from where the Legacy took off on its maiden voyage. He says that the São José tower should have given the pilots all the procedures they should follow until they reached Manaus, in the Amazonas state, before authorizing their take off.

Brazilian pilots heard by O Estado de S. Paulo told that paper, based on what they read in the transcripts, that Lepore and Paladino showed that they were unprepared to fly the Legacy and didn't know how to operate the equipment of the small jet.

According to them, the American pilots didn't plot correctly the flight plan in their FMS (Flight Management System), an equipment that helps pilots plan their flights. "They couldn't even configure the flight plan," said a commercial plane commander.

The pilots are criticized for not knowing the plane's manual especially the trouble shooting (TX) section of the book. One of the US pilots is heard saying in the transcript: "I don't know what TX 35 means."

For another Brazilian pilot, the Americans didn't seem to have any familiarity with the navigation instruments. "This is something basic," he told O Estado, "but it seems as if they had trouble even using the radio. If they had plotted the flight plan data correctly, they would know that they were flying in the wrong altitude. The flight controllers, however, are in part responsible since they should have alerted about this."

The black box recording shows Lepore and Paladino angry at the São José dos Campos flight controllers for letting they take off without giving them more details. "We were trying to get an altitude before leaving and this happened. This way is tough," one of them says.

To what a retired commander commented: "At each stage of the flight there is a check-list to assist pilots. Apparently they didn't use it. This is aviation's ABC. It wasn't only one blooper but several of them."

Despite damages to the smaller plane, the seven passengers in the Legacy were able to land safely at an Air Force air base in the Amazon jungle.

Joseph Lepore, 42, and Jan Paladino, 34, two American pilots who were flying the Legacy plane over the Amazon last September 29, concluded Folha, are not telling the truth about what happened during their flight and they also seem to have little familiarity with their plane and the Brazilian skies.

They apparently were also sometimes paying more attention to a laptop playing a movie than to the flight. The article written by journalist Eliane Cantanhêde concludes that the accident was caused by a "a series of mistakes, misunderstandings and a certain inexperience or incompetence."

While the original flight plan anticipated a change in altitude from 37,000 feet to 36,000, the Folha text concluded that the transcripts make it clear that problems of communication between the control tower and the pilots for three times prevented the pilots from getting a straight answer at what altitude they should fly.

For Folha, Lepore and Paladino lied when they said that they became aware that they had hit another plane only after their emergency landing at Serra do Cachimbo military Air Base. The transcripts show one of the pilots asking right after the collision between the two planes: "What the hell was that?" A little later one of them says, "We hit another plane. I don't know where this shit came from."

According to Folha, the transcripts don't answer a key question: "Why the Legacy's transponder, which should have prevented the collision, wasn't working at the time of the accident?"

Brazilian investigators work with the hypothesis that one of the two pilots, Lepore or Paladino, had a laptop open in the cockpit in a way that its cover hid the panel where the transponder was located. While there is no explicit mention of laptop in the taped conversation, they talk about a DVD.

From the almost 300 pages of voice data gathered from the small jet's black box, 112 pages are for conversations from the American pilots. The rest contains communications  with the São José dos Campos tower, from where the Legacy took off and attempts from the Cindacta-1 control tower in Brasí­lia and Cindacta-4 in Manaus to understand why the Boeing 737 had disappeared from the radars.

The transcripts also reveal that flight controllers in Brazilian capital Brasí­lia were sure that the Legacy was at 36,000 feet and not 37,000, which was the real altitude.

The pilots seem to show they have little experience with the Legacy. Talking about the FMS (Flight Management System) one of the pilots comment: "I'm still working on how to deal with this thing." A little later he says that he needs to "read the manual" and complains: "Everything is a mess because (…) we need, I think,  to clean and set up this plane."

In one dialogue a pilot says to his colleague: "I need to learn this international shit." Both complain about the bad English of the São José dos Campos's controller.

The transcriptions were made at Washington's NTSB (National Transportation Safety Board). 

From his evasive response, Casey didn’t seem to know anything about the subject. Even though, anyone following the case knows that there are two pilots involved, Joe Lepore and Jan Paladino, and that the collision was between a Boeing and a small jet, the State Department spokesman referred to "several U.S. pilots" who "have been asked to remain in Brazil while Brazilian aviation officials look at the circumstances surrounding the collision of a couple of aircraft."

Twice he told the reporter asking the questions to direct his questioning to the Brazilian authorities. And when asked if the pilots were being treated according to the law, Casey commented: "My understanding at this point is that this investigation and the activities surrounding it are proceeding as we would expect them to."

What follows is an excerpt of the press briefing transcript containing the material related to the American pilots:

QUESTION: Do you have any update for us on the condition of these U.S. pilots that are in Brazil that were part of that crash a couple of months ago? Any update on their condition and what the U.S. might be doing to expedite their release or assist them in any way?

MR. CASEY: Well, I don’t think that there is a lot new that I have to offer you on this. This is the case of several U.S. pilots that are not charged with anything and not under arrest but have been asked to remain in Brazil while Brazilian aviation officials look at the circumstances surrounding the collision of a couple of aircraft. We have continued to be in touch through our consular officers with the individuals themselves and with their family members. We’re certainly in regular contact with the Brazilian Government about that case. We do want to see them conclude the investigation in a way that certainly respects their normal legal and regulatory procedures. But in terms of movement on that, I’d have to refer you to the Brazilian authorities.

QUESTION: Do you have information about the U.S. attempts to get them sent over to the United States?

MR. CASEY: Well, again, this is something that’s proceeding in accordance with Brazilian laws and practices and our main message to the Brazilian Government is we want to make sure that they are treated in accordance with the laws and the standards that Brazil has.

QUESTION: And just one final follow-up? Do you feel that they are being treated within their norms of international and Brazilian law at this point?

MR. CASEY: My understanding at this point is that this investigation and the activities surrounding it are proceeding as we would expect them to, but again I don’t have any real specifics to offer you. You really have to talk to the Brazilians about the details of that investigation.

"This tragic accident saddened the civil aviation community worldwide and has galvanized us to discover and correct its causes," IAOPA President Phil Boyer wrote to Brazil’s Minister of Justice, Márcio Thomaz Bastos.

"But, detaining the two pilots will only hinder the investigation."

The Brazilian government is conducting a criminal investigation simultaneously with the accident investigation. It seized the passports of the two U.S. citizens flying the Legacy jet to prevent them from leaving the country during the investigation.

Boyer noted that international agreements and guidance discourage the "inappropriate" use of safety information, including use for criminal prosecution.

"The presumption of criminal intent in conjunction with an aircraft accident investigation will stifle and thwart the objective of the investigation," Boyer said.

He also noted that since no criminal charges have been brought against the pilots in the accident, "there is apparently little evidence that would indicate a criminal act has been committed, [and] therefore they should be released."

IAOPA is a federation of 64 autonomous, nongovernmental, national general aviation organizations. IAOPA is the official voice of GA before international bodies such as ICAO.

IAOPA headquarters are in Frederick, Maryland (USA), with regional vice presidents in Switzerland, South Africa, Colombia, Brazil, and Japan.

Last week, the Aircraft Owners and Pilots Association’s (AOPA) president, Phil Boyer, sent the following letter to US Secretary of State Condoleezza Rice:

Dear Secretary Rice:
 
The Aircraft Owners and Pilots Association (AOPA) representing 410,000 US pilots, requests your intervention in securing the release of two American pilots currently being detained by Brazilian authorities investigating the crash of Gol Airlines Flight #1907.

These US citizens are pilots for ExcelAire and were involved in the September 29, 2006 mid-air collision between a GOL Airlines Boeing 737 and an Embraer Legacy business jet. 

To date, the pilots have been detained for more than seven weeks without criminal charges or explanation, which is in violation of international aviation treaties. 

It appears from media reports that the accident investigation could take another ten months to complete, placing these US pilots in jeopardy of being detained indefinitely.

AOPA is not taking a position on the accident or the investigative process; however, it is critical that due process be followed.  These US citizen pilots should be treated fairly under the law, and the US State Department must take action to obtain their release and their return to the US.

AOPA urges you to intervene with the Brazilian government to facilitate the release of these Americans to allow them to return home safely.