• Boeing Top MAX Pilot Takes The Fifth Over Document Subpoena

    From Larry Dighera@21:1/5 to All on Mon Sep 9 12:57:09 2019

    Boeing Top MAX Pilot Takes The Fifth Over Document Subpoena
    Russ Niles September 7, 201912

    The former chief technical pilot on the Boeing 737 MAX has invoked his
    Fifth Amendment rights and refused to turn over documents subpoenaed
    by the Justice Department as part of its broad investigation into the
    crashes in Indonesia and Ethiopia. Mark Forkner played a key role in
    the development of the aircraft and worked for Boeing from 2011 to
    2018. He’s now a first officer for Southwest. As chief technical
    pilot, Forkner’s job would have been to “provide flight operations,
    safety and technical support to Boeing internal and external customers
    at multiple levels” according to a job posting https://lensa.com/747-chief-technical-pilot-jobs/renton/jd/901d0f7141e0b383e481dba9092fa846
    for a chief technical pilot on another airframe.

    While “taking the Fifth” is often perceived as an admission of guilt,
    its use to avoid supplying documents is relatively rare and may just
    imply some legal wrangling between Forkner and the Justice Department, according to experts consulted by the Seattle Times https://www.seattletimes.com/business/boeing-aerospace/former-boeing-official-subpoenaed-in-737-max-probe-wont-turn-over-documents-citing-fifth-amendment-protection/
    . The Times has previously reported that it was Forkner who suggested
    to the FAA that the maneuvering characteristics augmentation system
    (MCAS) at the center of the probes not be included in the pilot flight
    manual for the MAX. He, his lawyer and officials with the Justice
    Department all declined to comment on the legal move. ------------------------------------------------------


    Former Boeing official subpoenaed in 737 MAX probe won’t turn over
    documents, citing Fifth Amendment protection
    Sep. 6, 2019 at 7:01 pm Updated Sep. 7, 2019 at 8:37 am

    [image] The final assembly area for the 737 MAX airplanes outside the
    Boeing factory in Renton in May. (Mike Siegel / The Seattle Times)

    By Steve Miletich
    Seattle Times staff reporter

    A former Boeing official who played a key role in the development of
    the 737 MAX has refused to provide documents sought by federal
    prosecutors investigating two fatal crashes of the jetliner, citing
    his Fifth Amendment right against self-incrimination, according to a
    person familiar with the matter.

    Mark Forkner, Boeing’s chief technical pilot on the MAX project,
    invoked the privilege in response to a grand jury subpoena issued by
    U.S. Justice Department prosecutors looking into the design and
    certification of the plane, the person said.

    Invoking the Fifth to avoid testifying, while a legal right, is
    sometimes interpreted as an admission of guilt. Its use to resist a
    subpoena for documents is less common and may only imply a dance
    between prosecutors and defense attorneys, legal experts say.
    Forkner, now a first officer for Southwest Airlines, referred
    questions to his attorney when reached by phone. His attorney, David
    Gerger, of Houston, did not respond to inquiries.

    Justice Department spokesman Peter Carr declined to comment. Boeing
    also declined to comment.

    Prosecutors in the Justice Department’s Washington, D.C., fraud
    section are conducting a wide-ranging investigation into the crashes
    that occurred Oct. 29 off Indonesia, and March 10 in Ethiopia, killing
    346 people and leading to worldwide grounding of the plane.

    Their investigation includes the role of a new flight-safety control
    system called the Maneuvering Characteristics Augmentation System
    (MCAS), which has been implicated in the crashes.

    Forkner, who worked at Boeing from 2011 to 2018, according to his
    LinkedIn profile, was frequently anxious about the deadlines and
    pressures faced in the MAX program, going to some of his peers in the
    piloting world for help, a person who worked on the project previously
    told The Seattle Times, speaking on condition of anonymity.

    The MCAS system, designed to move a powerful control surface at the
    tail to push the airplane’s nose down in certain rare situations,
    played a critical role in the crashes when the planes nose-dived out
    of the sky.

    During the certification process, Forkner suggested to the Federal
    Aviation Administration (FAA) that MCAS not be included in the pilot
    manual, according to previous Seattle Times reporting.
    The FAA, after internal deliberations, agreed to keep MCAS out of the
    manual, reasoning that MCAS was software that operates in the
    background as part of the flight-control system, according to an
    official familiar with the discussions.

    In addition, 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. MCAS was not mentioned.

    Boeing has said MCAS was only one link in a chain of events, and that
    MCAS was designed according to the standard procedures it has used for

    “The 737 MAX was certified in accordance with the identical FAA
    requirements and processes that have governed certification of
    previous new airplanes and derivatives,” the company said in a
    previous statement.

    Gerger, in an earlier interview, said, “Mark never dreamed anything
    like this could happen. He put safety first.”

    It isn’t clear when Forkner received the subpoena or if the Justice
    Department, as part of the secret grand jury proceedings, has asked a
    judge to compel disclosure of the documents.

    Also unknown is whether Forkner and the Justice Department have
    discussed terms under which he might surrender the documents, and
    whether subpoenas have been issued to other individuals for records.
    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,” said University of Washington law professor
    Jeffrey Feldman.

    But there are exceptions that allow the privilege to be asserted where
    “the mere act of producing the document” may be seen as an
    incriminating act, Feldman said.

    Paul Rothstein, a Georgetown University law professor, said documents
    may show a person “has them, knows about them or admits they exist.”
    “This information can often be somewhat incriminating of that person
    and thus covered by his Fifth Amendment privilege against
    self-incrimination,” Rothstein said.

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