A Federal Judge in Texas ordered Boeing to appear in court in San Antonio later this month to be arraigned on the criminal charge of fraud against the United States, for the company’s role in deceiving the Federal Aviation Administration about flaws in its Boeing 737 Max aircraft. Families of the 346 people who died in the crashes of two Boeing 737 Max aircraft in 2018 and 2019 will be present to speak to the court – as is their right as victims of the crimes to which Boeing has already pled guilty.
This hearing is a knock-on effect of Judge Reed O’Connor’s ruling last fall, that the families of those who died on Max airplanes are the legitimate victims of Boeing’s crime. With that then, they have a right to be heard on matters involving the criminal prosecution of the planemaker.
“The families think it is appropriate that Boeing will have to appear in court and stand in the dock like any other federal criminal defendant,” said Paul Cassell, a law professor specializing in crime victims’ rights and who is representing the Max families.
While the arraignment gives people, like Naoise Ryan, whose husband died on Ethiopia Flight 302, the opportunity to hear the charges and address the court, the families have a longer game; undoing the $2.5 billion dollar plea deal the Justice Department negotiated with Boeing two years ago.
The judge’s decision puts them one step closer to that goal but they have no time to waste.
The deal, known as a deferred prosecution agreement, is in the last year of its 3-year term. At its end, Boeing will be immunized from any further criminal liability in the Max case due to the Justice Department’s position that the company’s misconduct was limited to a few mid-level pilots but not pervasive or facilitated by senior management.
The families (and many others including Congressional investigators), don’t believe the 737 Max disasters were the result of a few miscreants at the company and do not want to see Boeing immunized from prosecution. And, because in spite of their rights to be consulted under the Criminal Victims Rights Act, they were not only not consulted, they were not even told about it, Cassell says the agreement is “procedurally illegal”.
Boeing has already made payments to victims, disaster victims as well as airlines that lost revenue as a result of the nearly 2-year grounding of the aircraft. The company made this point and others in arguing that the DPA should not be reopened. There’s little disagreement that unwinding that spool would be extremely complex.
Still, the law is the law, according to Cassell.
“You can’t reasonably rely on what is an illegal deal and this was an illegal deal because the victims weren’t told of it,” he explained.
“It was done without consulting with the victims and so even though the government and Boeing reached a deal that it (Boeing) would not have to be prosecuted, that deal would have to be set aside because the victims didn’t get a chance to make a case that they should be prosecuted.”
That’s the argument he made in a motion still pending. Both Boeing and the Justice Department have opposed it.
That’s the long game. The short game happens next week when, at the arraignment in Ft. Worth, Max families will tell the judge they want to have a say in how Boeing is meeting the terms of its release. For an individual criminal, that might be the amount of bail that person would have to post, or whether when released pending trial, certain activities were restricted. In Boeing’s case, the DPA called for it to submit reports on its corporate compliance and ethics progress and notify the government of any new information it came upon regarding fraud in the Max program.
Families have complained that they don’t know any of those details, and have no way of monitoring Boeing’s compliance.
“It is hard to tell what is happening,” Cassell said. “Maybe there is monitoring or maybe there is no monitoring going on at all. The process is entirely secret and that can’t be a useful exercise in terms of reassuring the public.”
For an interesting look at the rights of crime victims, see my previous post here.
Judge O’Connor’s declaration that 737 Max families are “victims” of Boeing’s fraud, see my previous post here.
Author of The New York Times bestseller, The Crash Detectives, I am also a journalist, public speaker and broadcaster specializing in aviation and travel.