OG,
OK, but in both cases, if the alternative was a stall, avoided by the system, rather than a flying impact with the ground/trees, I'm not sure that would have been better. Almost everyone did walk away.
Could either crew have honestly said "if only we'd had another 1.5 degrees, our finely planned and executed manouevre would have been a spectacular success."
It's also not clear that the phugoid is avoided by changes to the early control actions, or as it builds a few seconds later. Making a legal excuse based on the flight control systems action just suggests you'd be vulnerable to the question "So, Capt. Asseline, did you know this about the flight control software you were using before you crashed at Habsheim?"