Mark Forkner, formerly a Boeing test pilot, was to be arraigned in Federal Court in Texas today for fraud for his role in the crashes of two Boeing 737 MAX airliners that killed a total of 346 people. Forkner is the first individual to be criminally charged for hiding Boeing’s flawed design of the 737 MAX from regulators.
One might find this lone wolf prosecution curious considering that in legal documents signed by Boeing earlier this year, the airplane maker acknowledged “fifty or more employees” had “participated in, condoned or was willfully ignorant” of Forkner’s deception of the FAA.
The consequences of the deception are well known; Lion Air Flight 610 crashed into the Java Sea shortly after takeoff in October 2018 killing 189 people. In March the following year, Ethiopian Airlines Flight 302 plummeted into a field in a startling similar manner and claimed all 157 aboard. Both crashes involved a malfunction of the Maneuvering Characteristics Augmentation System or MCAS.
After the disasters, the design and certification of MCAS was the subject of many government and media investigations – all of which found Boeing deliberately withheld critical information from the Federal Aviation Administration during the certification of the MAX. Through this effort, Boeing convinced the FAA not to require enhanced pilot training that might have dampened sales of the plane to airlines.
According to the indictment, it was Mark Forkner who was responsible for interacting with the FAA as its safety officials determined the level of pilot training the new aircraft would require. And it is Mark Forkner who is to stand trial on six fraud counts that, if made to stick, could send him to prison. And while acting US Attorney for North Texas Chad Meacham claims Forkner’s “callous choice to mislead the FAA hampered the agency’s ability to protect the flying public,” not everyone is convinced that the buck should stop with this former mid-level executive.
“I am not saying that he did not mislead the FAA or that he is innocent,” said John Coffee, a professor at Columbia Law, who has examined the document between Boeing and federal prosecutors. At a company like Boeing, key decisions and key negotiations with regulators aren’t left in the hands of a chief test pilot, Coffee told me, “that is what their lawyers and lobbyists do.”
According to Thursday’s indictment, Forkner told the FAA the MCAS system would be activated only under unusual, high-speed maneuvers. When he discovered the software would also put the nose of the aircraft down at slower speeds, he kept that from FAA in order to avoid regulations that would require more pilot training.
How Forkner came to learn about MCAS activation was detailed in a series of highly publicized text messages that the US Attorney reprints in the 16-page indictment.
What isn’t explained in the indictment is why Forkner is alone among others at Boeing who were also involved in keeping the full scope of MCAS a secret, not just from the FAA but from the airlines that purchased it and the pilots who would fly it.
Logic tells us this plot was not confined to Forkner. In fact, the indictment mentions it.
At the end of 2016, around the same time Forkner got the sim ride of a lifetime when MCAS ran “rampant”, the test pilot also reached out to a 737 MAX senior engineer. The indictment describes it as an inquiry about “MCAS’s operational scope,” though I’d imagine it was more like “WTF?”
Linguistical quibbles aside, the answer is worth noting because this “senior engineer” confirmed, “MCAS was no longer limited to operate only during high-speed, wind-up turns.” This would have necessitated a substantial re-thinking at the FAA if in fact, the FAA had been told but it was not.
It is the position of Boeing and the Justice Department’s Criminal Fraud investigators that but for Forkner and another of the company’s technical pilots, communication with the FAA would have been more forthright and disaster averted. In January, Boeing signed a deferred prosecution agreement to avoid criminal charges at Boeing other than the technical pilots implicated in the agreement.
The government justifies this lenient approach with the characterization that “the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior mismanagement.”
But Professor Coffee, author of the book, Corporate Crime and Punishment, The Crisis of Underenforcement, wonders what that conclusion is based on. In an interview with the web publication Corporate Crime Reporter, he says the agreement did not reference any independent analysis of the company and its management.
In exchange for the get-out-of-jail-free card, Boeing paid a 2 and a half billion dollar fine and promised to behave better. Some of the families of MAX victims call it justice denied.
“Mark Forkner did not act alone,” said Canadian Paul Njoroge, who lost his wife, mother-in-law and three children in the Ethiopian Airlines crash. “Boeing principals must have been behind the rush to produce the 737 MAX, push it into the market, project higher revenues and earnings, excite Wall Street and in so doing, pump up the Boeing stock.”
And Zipporah Kuria, whose father was killed, said the Forkner indictment was like “taking out one rotten apple in a pile of them” she said through her lawyer, Robert Clifford. It doesn’t make much of a difference, she said.
Air accident probes are based on the premise that there are many links in the chain to disaster. The same is surely true when examining intentional actions that have catastrophic consequences. Nevertheless, it would appear that prosecutors are laying the deaths of 346 people at the feet of one pilot while suspending and quite possibly eliminating further prosecution of Boeing and its executives.
And by the way, Erin Nealy Cox, the US Attorney who negotiated the agreement with Boeing left government service a few months later to join Kirkland & Ellis – the law firm that represented Boeing in the 737 MAX fraud case. Take from that what you will.
Author of The New York Times bestseller, The Crash Detectives, I am also a journalist, public speaker and broadcaster specializing in aviation and travel.