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Brazil Mid Air...THE TRIAL

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Brazil Mid Air...THE TRIAL

Old 1st Jun 2007, 23:27
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Brazil Mid Air...THE TRIAL

We've talked about the actual crash, now we must consider the legal side of the equation. I hope this thread remains apart from the original thread.



RIO DE JANEIRO, Brazil -- A federal judge indicted two U.S. pilots and four Brazilian air traffic controllers on manslaughter-related charges Friday in Brazil's worst air disaster, court officials said.

Judge Murilo Mendes accepted the charges filed by a prosecutor last week in a federal court in Sinop, a small city near the Amazon jungle site where a Boeing jetliner last year plunged into the rain forest after a collision with an executive jet. All 154 people aboard the jetliner died, while the executive jet landed safely.

"Now the criminal process begins," court spokesman Fabio Paz said by telephone.

The American pilots have been called on to give preliminary depositions on Aug. 27 and the flight controllers have been called to testify a day later, said Paz.

Pilots Joseph Lepore, 42, of Bay Shore, N.Y., and Jan Paladino, 34, of Westhampton Beach, N.Y., were charged with exposing an aircraft to danger resulting in death. Paz said the charge is similar to involuntary manslaughter and is punishable by one to three years in prison.

A lawyer for the pilots said the charges were unfounded.

"The pilots' conduct was completely competent throughout the flight and cannot be fairly characterized as criminal," said Joel R. Weiss. "The allegations against the pilots are inaccurate, and the pilots are innocent."

He added: "The fact is that air traffic control placed and approved these two aircraft on a collision course, on the same airway, and altitude traveling toward each other. That is the overwhelming, obvious root cause of this accident."

The men were detained for two months after the crash. They were allowed to return to the Long Island, N.Y., communities late last year after signing a document promising to return to Brazil for their trial or when required by local authorities.

Neither pilot could be immediately reached Friday. A call to a phone number listed under Lepore's name went unanswered and Paladino's number was unlisted.

Though the Brazilian judge wants the pilots questioned in Brazil, lawyers for Lepore and Paladino previously suggested that could happen in the United States. They have declined to speculate on whether the pilots would return to Brazil.

Lepore and Paladino were flying an Embraer Legacy 600 executive jet when it collided on Sept. 29, 2006, with a Boeing 737 operated by Gol Linhas Aereas Inteligentes SA, sending the passenger jet crashing into a remote swathe of the jungle.

One of the four controllers was indicted with the more serious crime of knowingly exposing an aircraft to danger -- similar to manslaughter -- while the others face the same charges as the pilots.

Mendes in his ruling accepted the prosecutors' arguments that the air traffic controllers could be tried in civilian courts. Before the prosecutor asked for the indictments, Brazilian officials consistently said the military controllers could only be charged in military courts.

Under Brazilian law, judges -- not grand juries -- issue indictments.

The two pilots were detained for two months after the crash. They were allowed to leave the country after promising to return for any court proceedings.
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Old 2nd Jun 2007, 03:42
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Just read the same thing.
But one has to remember that things in that part of these third world countries are very corrupt, they are just looking to blame anyone other than their own people.
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Old 2nd Jun 2007, 04:23
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Very simple, don't return to Brazil.
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Old 2nd Jun 2007, 07:49
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brazil needs to decide wether it's signed up to the ICAO rules on accident investigation or not. (annex 13). Its scandalous that they are trying to pin the accident on someone before the investigtion is complete. Also trying to pin it on the only 'someone' involved that wasn't brazilian. (mind you a certain european country close to our own shores seems to go in for that occasionaly!).
I think the answer though for the pilots involved is easy. Don't go back to brazil, and for the american authorities to refuse to extradite them as its patently obvious that they are not going to get a fair trial.
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Old 2nd Jun 2007, 08:10
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As you all know, one thing is an acident investigation and another thing is a trial for manslaughter. Annex 13 and the ICAO says that the investigation purpose is only to increase flight safety and not to be used on any trials. However, national laws go against this purpose all over the world and use the acident investigation report to incriminate people instead of doing their own investigation.

Check Six Kruger...
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Old 2nd Jun 2007, 11:56
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Yes, Maybe American,Delta,Continental and United should stop to fly to Brazil. We need to know if they want to stop......third world......
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Old 3rd Jun 2007, 04:38
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It's all about facilitating the civil lawsuits in the US.


Joe Sharkey At Large

Joe Sharkey writes, mostly about travel, for major national and international publications. 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 Sept. 29, he was one of seven people aboard a business jet involved in a mid-air collision with a commercial 737 over the Amazon. All 154 people on the 737 died, while the business jet managed to land at a jungle airbase. Joe'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. Joe is the author of six books, two of which are currently in development as feature films. A native of Philadelphia and a Vietnam veteran, he lives in the New York area with his wife. This is a personal blog by a freelance writer who is solely responsible for its content. The blog is supposed to be mostly about travel, but its proprietor tends to wander off sometimes. This blog has absolutely no connection to any other publication or enterprise, whether real or imagined. E-mail: [email protected].

Friday, May 25, 2007
Brazil: Pilots and 4 Controllers Indicted

Translation by our Sao Paulo bureau chief, Richard Pedicini:

By G1, in São Paulo, with information from RMT On Line

"The two pilots of the Legacy jet and four air traffic controllers were indicted today by the Federal Prosecutor Thiago Lemos de Andrade before the Federal court in Mato Grosso.

They were charged as being responsible for the accident which provoked the crash of the Gol Boeing, on September 29, 2006, in Mato Grosso. The 154 people who were aboard the airliner died. The Legacy and the Boeing collided in midair. The Legacy managed to land at the Serra do Cachimbo air base in the south of the state of Pará.
For the prosecutors' office, the "imprudence and negligence" of North American pilots Joe Lepore and Jan Paladino justified the indictment (formal accusation) against them. Lemos [asserted] that the six [the two pilots and four air-traffic controllers] had provoked the collision of the two aircraft in midair.

Military Justice prosecutor Giovanni Rattacaso [who works for the military] said that the case should continue under the civilian courts. "As soon as I receive the indictment, I will do an analysis of conflict of jurisdiction. Preliminarily, I can say that I understand that there is no need to bring the case to the military sphere."


I talked today with Joel R. Weiss, an attorney in Long Island for the pilots. He issued issued this statement today:

"The accident of Sept. 29 was a terrible tragedy and today the prosecutor's charges against the pilots compounds that tragedy. It is an injustice to charge the pilots, who are innocent of any crime. They obeyed the altitude clearance given to them by Air Traffic Control and followed all international aviation regulations."

Mr. Weiss continued, "There are currently Congressional hearings in Brazil investigating the aviation crisis. Yesterday, it was reported that the Report Referee of the Aviation Crisis [congressional investigative panel], Marco Maia, said: "'If the controllers had adopted standard [aviation] procedures, there would not have been an accident." [My italics]

Mr. Weiss said, "Aside from being unjust, the prosecutor's charges are also premature, as the professional investigation by CENIPA (the Center for Investigation of Aeronautical Accidents) is still underway."


And so, Brazil's Keystone Kops have made their move. But it came with a surprise, in that the Federal Prosecutor also decided to indict four Brazilian air traffic controllers, one of them on a felony count of intentional negligence. The two pilots and four controllers, the prosecutor said, together caused the disaster.

No one else.

The next step is expected to be that the federal judge whom they rushed this case to in forlorn Sinop, 400 miles north of Cuiaba in Mato Grosso, and a few hundred miles south of the collision site near the southern border of the state of Para, will rubber-stamp the indictment for trial.

However, this is Brazilian politics, in a country that was a military dictatorship till just 25 years ago, and strange things happen Down the Rabbit Hole.

After all, it came as a surprise to see the four controllers accused along with the two American pilots. The prosecutor, not the Federal Police, is widely believed to have decided at the last minute to add the controllers to the accusation, after it had become clear to well-tuned political ears in Brazil that domestic and international public opinion would react strongly against indicting only the Americans, when all of the evidence points to systemic and human failures in air-traffic control as the cause of the crash.

Mr. Pedicini of our Sao Paulo bureau wonders about that:

"At the last possible moment, the controllers are named. The prosecutor holds different views than the police? Or is it he wants to keep hold of the case, so that he can mismanage it in Sinop, MT [Mato Grosso], Pop. 100,000, far from the eyes of the press and the world, rather than letting Rattacaso get his hands on the controllers? The principal goal of all of this is to facilitate the civil suits in the United States. It is not about anything else at all. If the prosecutor can get the controllers acquitted and the pilots convicted -- or if he's mangled the indictment so that it will be accepted against the pilots, but not the controllers - then he's placed someone well on the path to a big payday," Mr. Pedicini says.

One takes nothing at face value down the rabbit hole, I would add. I agree that immense public pressure is coming from relatives of the 154 victims, who want to scapegoat the pilots alone, and to ensure that the civil cases are tried in the United States, where the money is, and not in Brazil, where the likelihood of getting a big payout from the Defense Department, which runs all air-traffic control, is slim to none.

Meanwhile, I was intrigued at the the prosecutor's statements at a press conference this afternoon that -- yes, by golly, -- there was something to all that talk about blind spots and dead zones in radio and radar coverage in regions over the Amazon (as I had been saying for seven months, creating violent denunciations against me in Brazil and from the bumbling Defense Minister, Wonderful Waldir Pires, whose department runs air traffic control and, of course, has its hands on its budget).

But since the Keystone Kops' brilliant investigation has now "found" that there are known blind spots and dead zones (the Brazilian military has always forcefully asserted that to talk of blind zones and radar holes was a calumny against the honor of Brazil) -- well, that just makes the suspects MORE GUILTY, the esteemed prosecutor argued, employing true "Alice in Wonderland" logic.

"It is evident that there are blind spots in air space. This only aggravates the conduct, because they knew that the aircraft was entering into a critical area," Andrade said. He emphasized that it was proved in the investigation that in that stretch radio and radar function precariously.

(My note: "It was proved in the investigation?!!" Hey, Keystone Kops: As I have been reporting since the day I got out of Brazil, every pilot who flies in Brazil is fully aware of the blind spots and the bad communication (both technological and human.). Respected international aviation organizations have also been pointing this out. In November, IFATCA -- the International Federation of Air Traffic Control Associations -- issued a report warning that Brazil's air-traffic controllers , especially around Brasilia an the adjacent Amazon region (where the collision occurred), work in "an unsafe and dangerous system." Great police work: the Keystone Kops have finally done their investigation and found out, months after everyone in the world with the brain of a turnip already knew it, that there are big ATC problems in Brazil. But rather than holding t0 account the military brass responsible for those problems, they blame a handful of working stiffs.)

Here is a link to that IFATCA report. By the way, for those of you planning to fly in South America, IFATCA also recently expressed some serious concerns about Argentina's air-traffic control system, too.

Here's a link to the March IFATCA magazine special explaining in detail how the accident occurred. The International Federation of Airline Pilots also issued a recent condemnation of the way Brazil has conducted its investigation. And here is another copy of the link to the detailed report ExcelAire sent to the Federal Police last month, outlining the elements of the case that are not in dispute.

Back to the jungle: Oddly missing today in this dash to Sinop court was any real discussion of Brazil's busted-valise of an air-traffic control system, and of those who are responsible for it, the Brazilian military, however.

For months, the Federal Police have been rushing to obtain criminal indictments, even though several governmental and independent investigations are still looking into the multiple causes of the crash, and even though international pilots' and other aviation organizations have issued stern warnings about criminalizing aviation accidents, especially those that are still under investigation.

The federal prosecutor based the indictment on a 44-page Federal Police report that most people following this story -- beyond the Brazilian government and military, that is -- believe was a monumentally flawed attempt to cover up the actual causes of the disaster.

The surprise indictment of four controllers on the ground was seen as a maneuver to deflect charges that the Federal Police were determined to railroad the Americans only, and avoid any action against controllers, who are military personnel.

Warning (which ought to be mandatory in journalism in situations like this): I don' t yet have a full grasp of the nuance of what happened today in the godforsaken city of Sinop (pop. 100,000), 400 miles north of Cuiaba, the capital of Mato Grosso. The people I know in Brazil who have been following this case are wondering why one air traffic controller seems to be defined as a principal culprit, after the pilots. WTF is going on there?

Moreover, it's unclear how Brazil's air-traffic controllers in general will react to the criminal charges against their four colleagues, and the precedent this sets, as well as the announcement that the controllers will face trial in a civilian court.

For months after the disaster, air traffic controllers staged repeated protests that virtually shut down Brazil's air traffic system for days at a time. The job actions were presented as protests of poor working conditions and bad pay, inadequate supervision and training, and antiquated and unsafe equipment at air-traffic control centers. But they were also seen in a political context -- as clear warnings to the government of what the controillers could do if blame for the disaster shifted their way.

On Dec. 8, when a Brazilian court ordered the Americans released from Brazil after they were detained without charge for 71 days following the accident, Federal Police hastily cobbled together the accusation that is now, six months later, the basis for the indictment. Just before leaving Brazil, the pilots were required to sign a statement in Portuguese saying they agreed to cooperate in future investigations.

The Federal Police have produced no evidence that the American pilots did anything wrong. The police charges are based exclusively on the assertion that the signal of the American plane's transponder -- a secondary locator device that also triggers an anti-collision alert if another plane is approaching-- was not being received on the ground, and that the pilots failed to make themselves aware of that.

Air traffic control, on the other hand, is required to monitor an aircraft's transponder, and the evidence is not in dispute that controllers had clear indications for 55 minutes before the collision that the air-traffic control center handling the flight was not receiving a signal from the Legacy 600 business jet's transponder. The air traffic control operators handling the Legacy (there were two because a shift change occurred) did not attempt to notify the business jet about the problem, as they are required to do.

It also is not in dispute that Brazilian air-traffic control had the two airplanes -- the Legacy business jet and an oncoming Gol 737 airliner with 154 aboard -- cleared on a collision course at 37,000 feet over the Amazon. Nor is it in dispute that Brazilian air traffic control lost contact at times with both the Legacy and the Gol in the infamous "dead zones" over the Amazon where radar and radio coverage is spotty at best.

Here is an earlier story today predicting the charges against the pilots (but not the controllers):

Indictment of Legacy pilots offered today
If court accepts prosecutor's recommendation, they will become defendants in a criminal case
Bruno Tavares, BRASILIA

Federal prosecutor Thiago Lemos de Andrade will offer today to the Federal Court of Mato Grosso the indictment (formal accusation) against American pilots Joseph Lepore and Jan Paul Paladino. The two conducted the Legacy jet that on September 29 collided with a Gol Boeing 737-800, killing 154 people. The indictment will be delivered today to judge Murilo Mendes, head of the judicial subsection of Sinop (MT). If the magistrate accepts the Federal prosecutor's indictment, the pilots will become defendants in a criminal case which will investigate their responsibility in the aviation accident.

Before they returned to the United States on December 8, Lepore and Paladino had already been accused by the Federal Police for "exposing an embarkation or aircraft to danger," unintentionally. If they are convicted of the crime, the two are subject to a penalty of from 4 to 8 years of reclusion. [MY NOTE: Our Sao Paulo bureau chief Mr. Pedicini notes that the newspaper is wrong here: "For unintentional, it's 4 years of "detention", which is an alternate penalty like a halfway house or community service. "Reclusion" is prison, but that's only for intentional."]

Despite the accusation of the pilots having been made at the end of last year, it was only on the 7th of this month that the Federal Police concluded their investigations. In a 41-page report, Federal police inspector Renato Sayão Dias maintained the decision to hold the American pilots responsible for the accident.

However lawyer Theodomiro Dias Neto, the criminal lawyer heading the team defending Lepore and Paladino, reacted against the Federal Prosecutor's decision. "It is an absurdity that the press knows of this beforehand," the pilots' lawyer protested. "In any event, it seems to me premature to offer an indictment without first knowing the result of the technical investigation which is being done by Cenipa (Center for the Investigation and Prevention of Aeronautic Accidents."

Sought yesterday by O Estado, the Federal prosecutor did not want to advance the content of his manifestation. But, during six months of police investigation, Andrade had already demonstrated the conviction that the accident had been caused, in large part, by human error. Although he had 15 days to emit his opinion, he finished the work in only four days. "I know the inquiry well", he admitted.

The Federal Prosecutors' Office and the Military Prosecutors' Office (MPM) are still discussing if the four flight controllers cited in the Federal Police inquiry will be named in the same process or if the investigation will be conducted in the military sphere.

In the preliminary evaluation of military prosecutor Giovanni Rattacaso, there are already elements to indict the professionals for involuntary homicide doubly aggravated (inobservance of craft or profession and multiple victims).

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Old 3rd Jun 2007, 10:18
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The military and the church run things in South America. Democracy is just a façade and all civilian governments are closely watched by the military. Therefore, even though the military ATCO were also indicted, it doesn't mean that they would receive any form of punishment by the civilian courts. The two Americans would receive all the flak.

Ultimately, the government should be blamed for the accident. The corruption, the lack of morals, and commitment to the needs of the nation is a routine occurrence. The lack of appropriate aeronautical infrastructure in the Amazon region is long overdue
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Old 3rd Jun 2007, 15:58
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Brazil Air Traffic Controllers - Parliamentary Inquiry

Air Force Sergeant Wellington, Air Traffic Controler testimony about Legacy N600XL and Boeing 737-800 GOL Flight 1907 midair collision.

The Legacy N600XL Flight Plan PRESENTED to Air Information Service in Sao Jose dos Campos, in which it was PROPOSED as written and point out in red:

It HAD NO APPROVAL to step down to 36.000 feet after Brasilia VOR and to climb up to 38.000 feet after TERES position along airway UZ 6, said Sergeant Wellington, Air Traffic Controller and supervisor on SEP 29, 2006 at Brasilia Air Control Center.

In other words, the N600XL Flight Plan was AUTHORIZED only on Flight Level 37.000 feet after Brasilia VOR.

Air Force Sergeant Wellington, Air Traffic Controller bore testimony to Senator Demostenes Torres for the Parliamentary Committee of Inquiry.

Air Force Sergeant Wellington, Air Traffic Controller in his testimony on May 25th, 2007, Friday at National Congress:

***Bold and highlight AND [] by George Rock

SR. WELLINGTON ANDRADE RODRIGUES: O que nós temos que saber diferenciar existe o plano de vôo proposto, plano de vôo solicitado e plano de vôo autorizado. Nós temos diferenças nisso.

Mr. Wellington Andrade Rodrigues: What we have to understand distinguishing that there is the 'PROPOSED Flight Plan ', the 'REQUESTED Flight Plan' and, the 'AUTHORIZED Flight Plan'. We have difference in that.

SR. RELATOR SENADOR DEMOSTENES TORRES (DEM-GO): Correto. E nesse caso, o proposto foi oautorizado?

Mr. Senator Demostenes Torres, Relator (=referee), Democrats Party, Goias State: Correct. In this case, the 'PROPOSED [Flight Plan ]' was it the 'AUTHORIZED [Flight Plan ]' ?


Mr. Wellington Andrade Rodrigues: No.

SR. RELATOR SENADOR DEMOSTENES TORRES (DEM-GO): Qual a diferença? Esse foi o plano de vôo proposto. O que foi autorizado? O senhor pode nos dizer?

Mr. Senator Demostenes Torres, Relator, Democrats Party, Goias State: What's the difference? That it was the PROPOSED Flight Plan . Which was the AUTHORIZED [Flight Plan ]? Do you can tell us, sir?

SR. WELLINGTON ANDRADE RODRIGUES: Eu digo assim com base no que eu ouvi, porque como não fui eu que fiz a autorização, eu posso explicar por base do que eu fiquei sabendo.

Mr. Wellington Andrade Rodrigues: I say thus based on what I have heard, because as it was't me who made the CLEARANCE, I can explain grounded on what I learned.

SR. RELATOR SENADOR DEMOSTENES TORRES (DEM-GO): Então o senhor também não tem certeza se foi realmente, o senhor não teve acesso a essa documentação.

Mr. Senator Demostenes Torres, Democrats Party, Goias State: Then sir, you do not make sure also whether it actually had been [AUTORIZED], sir, you had no access to that documentation.

SR. WELLINGTON ANDRADE RODRIGUES: Não. Eu tive acesso às gravações... Que não fui eu que fiz a autorização.

Mr. Wellington Andrade Rodrigues: No. I had access to tape-recordings...that it was't me who made the CLEARANCE.

SR. PRESIDENTE SENADOR TIÃO VIANA (PT-AC): Permita, Relator, você afirmou aqui que não foi o autorizado.

Mr. Senator Tiao Viana, President of Parliamentary Commettee of Inquiry, Labors Party, Acre State: Permission, Relator, you [Sergeant Wellington ] affirmed right here that [Flight Plan ] it had not been AUTHORIZED.


Mr. Wellington Andrade Rodrigues: That I affirm.

SR. PRESIDENTE SENADOR TIÃO VIANA (PT-AC): Foi proposto, mas não foi autorizado.

Mr. Senator Tiao Viana, Presidente of Parliamentary Commettee of Inquiry , Labors Party, Acre State: It had been PROPOSED, but it hadn't been AUTHORIZED.

Last edited by georgecrock; 4th Jun 2007 at 09:24.
Old 4th Jun 2007, 22:06
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Some words of caution :

Contrary to what this thread says : there is no Trial yet. Only gesticulations from a local State prosecutor and some police investigators.

In a " normal" situation, one waits until the official accident investigation is completed before starting a trial. But Brazil is not your " normal " State either.

Contrary to what was said here, the 4 indicted controllers have been named , and the Brazilian press reproduced the names already (Apparently the lessons of Ueberlingen have not been learned ) but even more worrying , they have been charged with ' intentional " manslaughter.

The extracts of Congress testimony of Wellington Rodrigues, posted here are only a very small part of this 4,5 hours hearing. There was far more information in that hearing, and taking 2 sentences out of context does not bring an accurate view of what was said.

The 2 pilots are dragged on this against all rationale, as the info retrieved by the official accident investigation so far do not put any error on their part .

Their indictment is not about having followed ATC level instructions or not ( as their defense lawyer is constantly referring to ) but as to whether they switched off involuntarily, (or even voluntarily !) their Xponder. The investigation has not yet concluded the technical possibilities on this issue. But seeing what the prosecutor had done with the controllers, there are indeed fears that the 2 pilots could also be charged with something “ intentional “ .

My friend in Brazil are saying that there is a vast political game being played in the background , and this accident is used by some as a mean to push their games in their favor.
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Old 5th Jun 2007, 03:30
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Excuse me, but which Brazilian law did the pilots and the controllers violate? You cannot be charged, indicted, and prosecuted for a crime, unless you can point to a law that was broken. The very definition of a crime is "breaking the law"

The first post said:

Pilots Joseph Lepore, 42, of Bay Shore, N.Y., and Jan Paladino, 34, of Westhampton Beach, N.Y., were charged with exposing an aircraft to danger resulting in death. Paz said the charge is similar to involuntary manslaughter and is punishable by one to three years in prison.
Is "exposing an aircraft to danger resulting in death" a law in Brazil? Is "punishable by one to three years in prison" written in the legal code as recommended punishment for violating this so called "law"? I don't care if this alleged "criminal act" act is similar to riding a bicycle upside down, is there an actual law that was violated here?
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Old 5th Jun 2007, 22:26
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I'm not going to try to explain legal process in Brazil but, you know, I'm beginning to come around to the idea that all this byzantine kafuffle - Federal Police, public prosecutor, courts-martial, even a congressional enquiry - is not a bad thing. Other than that it takes up a hell of a lot of time and money which could be more usefully spent elsewhere.

What it IS doing is showing up the anachronistic tensions in the "system", i.e. military ATC control with a mixed military/civilian staff, lack of investment, the culture of ass-covering and avoiding blame, lack of planning and lack of leadership, for precisely what it is. On prime time.

In the meantime, the real accident investigation goes on and, I think/hope, unemotionally, conducted by professionals who shun the limelight and the reporters, and who will eventually probably reach a conclusion based on facts - and which many on here have already arrived at empirically.

As ATC Watcher rightly cautions, there is no trial underway. And yes, there are heavy political aspects, basically those of pointing the finger at who misspent the money in the past and who gets to control the money in future.

So, please consider all this "trial" business as static.
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Old 6th Jun 2007, 19:09
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The extracts of Congress testimony of Wellington Rodrigues, posted here are only a very small part of this 4,5 hours hearing.
The extracts herein is to be undrestood as matter of fact and demonstrate that Sergeant Wellington said to congressman that something in the 'PRESENTED' Flight Plan, it had no APPROVAL.

That's all.
Old 6th Jun 2007, 21:16
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Georgecrock : Wellington Rodrigues is the President of the ABCTA , the Brazilian Controllers Association, it is in this function that he was asked to testify to the Parliamentary inquiry. Not as an involved Controller in the collision as your post suggest.
In the extract you posted , he was tring to explain to some senators the difference between a Flight plan with requested FLs and ATC instructions ( clearances ) in some words that the senators would understand.
We all know since the begining that the Legacy was never cleared by ATC to descent to FL360. So nothing really new.

The reasons why he was not cleared to descend are the interesting bits here.
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Old 9th Jun 2007, 15:05
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An encouraging aspect of the congressional investigation is move afoot to call for a thorough audit of Brazil's ATC equipment by a body appointed by ICAO. This is not really what the airforce would like - a bit difficult to imagine how an audit of equipment could be conducted without studying the system within which it it's used - but if the committee concludes for such an investigation the airforce will probably have to swallow it.
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