Is there an "Objection-Scapegoating" in the Federal Rules of Evidence?
Do enough work in taking depositions in civil cases in U.S. federal district courts, most or perhaps all state courts, and something like an instinct develops. A questioner asks a witness about what content a specific document includes or does not include . . . . drawing the objection, "the document speaks for itself."
Amidst several aspects of this case possibly worthy of comment, if there's one I'm pretty sure about, it is that certain of Mr. Forkner's written communications, informal though they were, poisoned the atmosphere about everything else involving his role and responsibilities as "chief technical pilot", from the very first time those messages hit the public arena. Those messages speak for themselves -- but only insofar as what specific content is set down in words, in phrasings. Not the context, not the background, and certainly not insofar as proving, beyond a reasonable doubt to a jury of his peers, the criminal intent necessary for a conviction.
Today's WSJ edition contains a piece of excellent reporting on Forkner's appearance in court Friday, and also a typically biting column by the inimitable Holman Jenkins. Your SLF/atty poster recommends these articles. In fact, the succinct yet thorough protestations of innocence by Forkner's legal counsel are enough to want to take suits to the cleaners in case the defense team needs a sub-sub-document hauler.
Many have noted the quite large ladders of hierarchy above Forkner. It doesn't take imagination, or much of it, to visualize volumes of email and other more formal document-type records (reports, memos, etc.) about the change in MCAS function. Have these been disclosed fully, as they would be in a full-authority U.S.D.C. civil case in this matter? Or were they disclosed in the Delaware shareholder suit pre-filing phase? I think it's obvious that Forkner's various reactions, noted in informal messaging documents, are small indications of a much, much larger picture. Everyone working on MAX knew additional training was stridently, relentlessly to be avoided, prevented. And who owns, within the massive corporate bean-counting machine, the decisions about that component of the 737 MAX aircraft program? Certainly not the defendant in this criminal case. (And several other phases of the road to air crash disasters likewise are marked by decisions about which Forkner was one of, what? --hundreds? --certainly dozens -- of Boeing employees who had no decision-making role yet who, in hindsight, are marred by said disasters.)
Beyond accountability, is there no room for sarcasm in informal messaging? Are we to take literally everything anyone bothers to reduce to words through keystrokes? Actually, "the document does not speak for itself" - try putting a document on the witness stand and asking it questions.
The release of documents by the company to the House Committee investigation, if I recall correctly, was tardy by quite a significant time. The excuse at the time was that the documents had also been sought by the Department of Justice. Obviously such a statement could not possibly have been offered without input from the company's legal staff, even its (renowned) general counsel. I'll get to attorney-client privilege in a moment..... The excuse was lame, but maybe it makes more sense now. Possibly the company was looking to force Forkner into his present jeopardy by taking advantage of his perhaps overly casual informal messaging parlance and tone. Sounds conspiratorial on WR's part doesn't it, you may ask.
Well, consider that after the LionAir crash, Boeing continued to play its p.r. game of pretending that all was completely on-course with this aircraft. The Delaware shareholder suit lays out the timeline nicely. If it is to be believed that the company did not merely stumble into a set of decisions about the MAX and MCAS as unconscious, random events or choices, then how much of a naive, gullible person does one need to be not to also believe that after the first crash, the CEO and the General Counsel had extensive communications about, you know, C.Y.A.
But attorney-client privilege bars reaching those communications (on the unproven assertion that such communications took place and could be reflected in documents). So: Boeing Board: Waive Attorney-Client Privilege about the MAX. What, you're afraid this could push the company into more serious decline, that the military-industrial complex of the United States and the Free World (or what there still is of it) will go into decline? Don't worry, you've lost that lovin' feeling, and it's gone, gone, gone . . .