The Wall Street Journal
By Dave Michaels and Andrew Tangel
March 18, 2022 6:00 am ET
A former Boeing Co. pilot accused of misleading federal air-safety regulators before two 737 MAX jets crashed is set to go on trial starting Friday.
Lawyers for Mark Forkner, who was the 737 MAX’s chief technical pilot during its development, are planning to argue that their client is being singled out as the scapegoat for broader aviation disasters. Mr. Forkner is the only person charged with crimes related to the crashes by the Justice Department, part of the agency’s efforts to hold individuals accountable for corporate misdeeds.
Mr. Forkner, whose trial will take place in Fort Worth, Texas, faces four counts of wire fraud that each carry a maximum penalty of 20 years in prison.
Accident investigators blamed a flight-control system known as MCAS—which Mr. Forkner briefed regulators about during the plane’s development—for sending two 737 MAX jets into fatal nosedives in 2018 and 2019. The crashes claimed 346 lives and prompted a nearly two-year grounding of all 737 MAX planes, disrupting the global aviation industry.
Mr. Forkner is accused of misleading the Federal Aviation Administration about MCAS to reduce how much training pilots would need to fly it, thus making the jet more attractive to airlines.
What Mr. Forkner told FAA training specialists about MCAS, as well as what other Boeing engineers told their agency counterparts, are likely to be the subject of critical testimony. In a settlement with the Justice Department, Boeing last year agreed to pay $2.5 billion to resolve charges that its employees misled the FAA. The deal included a $244 million fine as well as almost $2.3 billion in compensation to airline customers and families of the crash victims.
The 2019 crash scene in Ethiopia of Ethiopian Airlines flight ET302.
The case echoes an earlier prosecution of several BP PLC staff involved in the 2010 blowout on the company’s Deepwater Horizon drilling rig, which killed 11 workers and caused the largest oil spill off the U.S. Gulf Coast. Two former BP employees were acquitted in 2016; the government secured three guilty pleas to misdemeanors. One of those acquitted was represented by David Gerger, a Houston attorney who now represents Mr. Forkner.
Mr. Gerger declined to comment, as did the Justice Department, FAA and Boeing.
Boeing admitted in its settlement with the Justice Department that former employees deceived the FAA. The deal blamed two employees, although only Mr. Forkner was charged, and said senior management wasn’t involved in the misconduct.
Boeing initially designed the 737 MAX’s MCAS system to activate during certain high-speed flying conditions that pilots would rarely encounter. But during the aircraft’s development, company engineers expanded the system’s authority to push down the plane’s nose in certain low-speed conditions, too.
Mr. Forkner is accused by prosecutors of becoming aware of the change in November 2016 during a simulated test flight and not disclosing what he learned to FAA officials who would decide how much training airline pilots needed to fly the 737 MAX. Upon learning of the change, he wrote to a colleague: “So I basically lied to the regulators (unknowingly),” according to the indictment.
The training classification, which might have changed if the FAA knew more about the MCAS system, carried financial consequences for Boeing and its airline customers. If the FAA required 737 pilots to undergo simulator training for the new MAX models, it could prove costly to airlines and potentially hurt demand for the new jet.
Mr. Gerger has said Mr. Forkner always acted honestly in his dealings with the FAA. The defense attorney has said Mr. Forkner didn’t lie and was referring to a flight simulator not working properly.
Prosecutors allege that Mr. Forkner misled the FAA, which had the effect of defrauding Boeing’s airline customers. The carriers were deprived of information about the jet that may have influenced their decision to buy the 737 MAX, according to the indictment.
“It’ll be very difficult for the defense to paint Mr. Forkner as some peripheral player or as the scapegoat or fall guy in an otherwise grand scheme to mislead the FAA because he did play a central role in the certification,” said Kenneth Quinn, a former FAA chief counsel who has represented clients in criminal probes arising from air crashes and is now a partner at Clyde & Co in Washington, D.C.
Among the witnesses that prosecutors plan to call, according to court records, are an FAA training official, Stacey Klein, who is expected to testify about what Mr. Forkner told her about MCAS, and David Loffing, a senior Boeing engineer who interacted with Mr. Forkner about the 737 MAX.
Mr. Forkner’s lawyers plan to rebut claims that he deceived Ms. Klein by showing the FAA knew how MCAS worked, while Ms. Klein had access to information about how the system operated, according to a February court filing.
Defense lawyers plan to potentially call their own FAA witnesses, including an official who sent a presentation to the Justice Department saying Mr. Forkner is a scapegoat and not responsible for Boeing’s engineering errors in MCAS’s design, according to court records. Regulators later mandated that Boeing add safeguards to the flight-control system before the 737 MAX could again carry passengers.
Prosecutors recently asked U.S. District Judge Reed O’Connor to prohibit mention of the crashes during the trial, arguing the case is about the allegation that Mr. Forkner misled the FAA and defrauded two airline customers.
Mr. Forkner has said the crashes are relevant to his claim that he is the fall guy for a broader failure. Judge O’Connor ruled this week that Mr. Forkner could argue he is a scapegoat for the crashes.
“The government recognizes the very significant risk that a jury will see this as an attempt to scapegoat a low- or middle-level employee for something that jurors will see as a corporate failure,” said Sean Hecker, a defense attorney at Kaplan, Hecker & Fink LLP who isn’t involved in the trial. “And it seems like the government strategy is to try to take that away from the defense by making the case very narrow and almost devoid of context.”
Watch the Downfall documentary if you haven't already. That more people aren't in jail over this is a travesty of justice. Forkner bragged about misleading regulators - let him hang.
ReplyDeleteDOJ always going after the cog in the wheel. In what context did he say, “I lied?” No CEO prosecution? Shame on the DOJ, and on top of that the CEO received a golden parachute. This is what happens when you make promises to Wall Street and then can’t deliver on time. Too big to fail, too big to jail.
ReplyDeleteBoeing needs to design these planes for the worst certified pilots. Technology has progressed such that planes should be easier to fly, not harder. That's engineering 101. Most importantly, you never allow a single point of failure(sensor) on a critical system... Again engineering 101. I'd like to see the FMEA risk rating for that. Finally, when a plane crashes and you realize there was a single point of failure, you don't wait for a second aircraft to crash. I've read through many of the public documents and its obvious that management cut staff and schedules as well as outsourced to low cost centers so much that the design was likely to have deficiencies. There's plenty of blame to go around, (the pilot certainly shares some of it) but the upper execs make millions of dollars to make the right call and by not grounding the planes, they are responsible for those lives as well.
DeleteIf I was the FAA I would have the entire source code audited and tested on a sim by a 3rd party. I will not be flying on one of these anytime soon.
It is doubtful that an independent committee would have affected the situation with the Boeing 737Max.
ReplyDeleteThe problem with the 737Max was not the addition of the anti--pitch up software, it was the failure to inform those who train pilots that this new feature was coupled to only one Angle or Attack (AOA) sensor, and a failure of that sensor would activate the system contrary to pilot inputs.
Several pilots experience the malfunction and figured out a safe solution. Unfortunately, in 2 separate instances, the pilots got themselves into a "do-loop" where repeating the same action made the problem worse each time.
Boeing management was at fault for attempting a training shortcut; Boeing engineers were at fault for not requiring agreement between the 2 AOA sensors prior to activation. Those two errors turned what would have been a quirk into a potential catastrophe.
Flying is not inherently dangerous, but it is notoriously unforgiving of human error.
Bottom line is that if a western pilot was in command of either plane, neither would have crashed. I don't believe anyone person should be prosecuted, especially this man. Now I'm not saying Boeing is totally in the clear here, but to indicate that this man singlehandedly brought down these planes is lubricous.
ReplyDeleteThe problem is the corporate culture at Boeing since the acquisition of MD. That needs to change. It's called the tone at the top.