An Admission Of Guilt – Former Boeing Official Invokes Fifth Amendment Protection In 737 MAX Scandal

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Sep 10 2019
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While watching TV, you would sometimes hear about a lawyer telling his client to “plead the Fifth”. In a nutshell, it’s the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself. Michael Cohen, President Trump’s former lawyer and “fixer”, famously triggered his Fifth Amendment right against self-incrimination in the stripper Stormy Daniels scandal.


Understandable, people normally view “taking the Fifth” as a suggestion of guilt. After all, it was Donald Trump, who condemned Democrats for taking the Fifth during his presidential campaign, saying only mob members and guilty people do so. Hence, Trump was presumed guilty of having an affair with pornographic film star Stephanie Clifford (Storm Daniels) who was paid US$130,000 to keep quiet.


But what if a former Boeing official  who played a key role in the development of the scandal-plagued 737 MAX refused to provide documents sought by federal prosecutors investigating two fatal crashes of the jetliner, citing his Fifth Amendment right against self-incrimination? Can that be considered as an admission of guilt that Boeing was indeed responsible for the killing of 346 people?

Boeing 737 MAX - Unpainted Plane with Logo at background

Apparently, Mark Forkner, Boeing’s chief technical pilot on the MAX project, invoked the privilege in response to a grand jury subpoena issued by the U.S. Department of Justice. A former employee of Boeing from 2011 to 2018, Mr. Forkner has raised eyebrows as he refuses to cooperate as the US-DOJ prosecutors were looking into the design and certification of the plane.


While it’s absolutely legal to invoke the Fifth to avoid testifying against oneself, what is abnormal and jaw-dropping in Forkner’s case is his resistance to provide documents. Yes, the prosecutors did not ask him to say something which could be self-incrimination, but just for documents that supposedly belonged to the company he worked for. That surely doesn’t sound right, does it?


Legal eagles think the refusal to produce documents sought by the Justice Department may imply dance between Justice Department prosecutors and defence lawyers. According to the Seattle Times, Mr. Forkner, now a first officer for Southwest Airlines, referred questions to his attorney, David Gerger. However, Mr. Gerger refused to comment when approached for inquiries.

Boeing 737 MAX - MCAS Control System - How It Works

In the aviation disaster involving Ethiopian Airlines Flight 302 which killed 157 people on Mar 10, 2019 and Lion Air Flight 610 that saw 189 people perished on Oct 29, 2018, the prosecutors’ investigation includes the role of a new flight-safety control system called the Maneuvering Characteristics Augmentation System (MCAS), which has been implicated in both crashes.


Flight control software MCAS, a new software system, takes readings from the two angles of attack sensors to determine how much the plane’s nose is pointing up or down. The two sensors – “angle of attack indicator” – displays the readings of the two sensors, and the other – “angle of attack disagree light” – is an alert that activates if those sensors do not agree.


The MCAS was supposed to detect that in the event the nose of 737 MAX is pointing up at a dangerous angle, it can automatically push the nose down in an effort to stop the plane from stalling. However, the MCAS malfunctioned in the case of Ethiopian Airlines and Lion Air. To add salt into injury, the two safety features were not included in the aircraft by Boeing as standard safety features.

Boeing 737 MAX - Angle of Attack Indicator Sensor

To fit the Boeing Max’s larger, 14% more fuel-efficient engines, Boeing had to redesign the way it mounts engines on the 737. This change disrupted the plane’s center of gravity and caused the Max to have a tendency to tip its nose upward during flight, increasing the likelihood of a stall. Hence, the changes to the airplane’s automation system might have compromised the Boeing aircraft’s safety.


The new design was so complex that some pilots may have problems with it, especially if they’re not given all the training and information necessary to maneuver. That means Boeing should not have allowed pilots without sufficient training to fly the 737 MAX. CEO Dennis Muilenburg has apologized, admitting that the MCAS was “activated in response to the erroneous angle of attack information.”


Mark Forkner reportedly had frequently anxious about the deadlines and pressures faced in the MAX program, going to some of his peers in the piloting world for help. During the certification process, Forkner even suggested to the Federal Aviation Administration (FAA) that MCAS not be included in the pilot manual – a suggestion which the FAA agreed but proved to be a fatal decision.

Boeing 737 MAX 8 - Cockpit of the Aircraft

In what appeared to be a rush-to-market negligence, or even a cover-up, Boeing won the FAA’s approval to give pilots just an hour of training through an iPad about the differences between the MAX and the previous 737 generation. The new software MCAS was not mentioned in the training – suggesting a bigger cover-up in the Boeing’s top management.


Jeffrey Feldman, a law professor of the University of Washington, said – “While the Fifth Amendment protects people from testifying against themselves, it ‘usually does not apply’ to being required to produce documents because producing a document is not the same as being required to testify,”


The stunning act of the former Boeing chief technical pilot – invoking the Fifth Amendment – also indicates that he, and Boeing for that matter, has refused to provide the documents because they have the damaging documents, know about how damaging the documents can be after the two flight crashes or simply an admission of the existence of the documents.

Boeing 737 MAX - Flying Nose Up Pose

Curiously, considering that Mark Forkner had left the company, it doesn’t make sense why was he protecting some documents belonging to Boeing. Law professor Feldman thinks it could be his personal documents, diary or personal emails. The former Boeing employee could be using the Fifth to get immunity from use of the information in the documents.


That means in the eventuality the documents show Forkner was guilty, leading directly or indirectly to the crashes that killed 346 innocent lives, the information cannot be used in any way in any investigation of him or any criminal prosecution of him. Something surely smells rotten. And he isn’t ready to go down or being made the scapegoat by his former employer Boeing.


Boeing’s engineers reportedly discovered the error in 2017 but assumed there was no safety risk after a review. The company waited until after the October 2018’s Lion Air crash to begin telling airlines that the alert system had an issue. It waited another 5 months – until the Ethiopian Airlines crash – to reveal more details. Even then, it would take another 6 weeks before the public learned of the issue.

Boeing 737 MAX - Assembly Line

In its lawsuit filed in Cook County Circuit Court in Chicago recently, Avia Capital Services (a 100% subsidiary of State Corporation “Rostec”) has claimed US$115 million in compensation plus punitive damages. The aviation leasing firm wants to cancel its order for 35 MAX 8 jets, and demands a cash deposit of US$35 million to be returned with interest, along with US$75 million in lost profits.


Believed to be the first lawsuit arising out of the safety crisis at the U.S. manufacturer, Avia’s lawsuit filing said that the two aircraft crashes, with extensive loss of life, were due to “negligent actions and decisions of Boeing”. It also argued the 737 MAX is “defective” and that crucial information was withheld from the U.S. Aviation Safety Regulator.


Steven Marks, a lawyer representing Avia Capital Services, said that the company no longer wants to take delivery of its order of 737 Max jets. He said – “The public doesn’t have any trust in it, the client can’t use it. It has no value to them.” Avia was also asking “several times” that amount in punitive damages, which could cost Boeing hundreds of millions of dollars.

Boeing 737 Max 8 - Grounded - Crash

Based on a survey done by investment bank UBS, about 70% people have expressed hesitation to fly on Boeing 737 MAX jet. In the same breath, 41% of Americans say they would only consider flying on the 737 Max after 6 months of safe operation. That means they would wait and see others as a guinea pig takes to the sky before putting their own lives on the aircraft.


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The previous Chief Technical pilot on the 737 MAX project is now only a First Officer in Southwest?

How the mighty has fallen.

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