Lawyers for Mark Forkner, the former Boeing chief 737 Max technical pilot charged with deceiving the Federal Aviation Administration, say an unnamed FAA official has called him a “scapegoat” for the airframer.
The official thinks Forkner has been unjustly singled out and made responsible for fatal crashes of two Boeing 737 Max in 2018 and 2019, Forkner’s legal team says.
In October, the US Department of Justice indicted Forkner on six counts of fraud, saying he deceived the FAA about the 737 Max’s Maneuvering Characteristics Augmentation System (MCAS). That system was deemed to contribute to two crashes – one in Indonesia in October 2018, and one in Ethiopia five months later – that killed 346 people.
“On October 26, 2021 – 12 days after indictment – an FAA official with personal knowledge of the 737 Max contacted the government to request a meeting. Forkner, he [told the government], is a ‘scapegoat’ and should ‘not be charged,’” Forkner’s lawyers write in a filing with the US District Court for the Northern District of Texas dated 14 December.
“In a follow-up e-mail, [the FAA official] also stated that the government’s position, as conveyed in its announcement of the charges against Forkner, contained ‘many errors in fact,’” the attorneys write.
The defence says that three weeks later, “around 16 November”, that same FAA official sent the government a PowerPoint document stating, “The 737 Max accidents were caused by a failure of the engineering processes, but the public/media focus on ‘training and publications’ aspects (including the Forkner indictment) is not only incorrect and misguided, it is detracting from the real lessons that should be learned.”
The PowerPoint warns that the government’s pursuit of the case could be “a potential miscarriage of justice”.
“The problem with MCAS… concerned an engineering issue that Mr Forkner was neither qualified, expected nor responsible for,” the PowerPoint says.
Forkner’s lawyers add that the FAA now refuses to name the official, or allow them to speak with that person as part of their preparation. Attorneys allege the FAA is suppressing the evidence without cause.
“Mr Forkner needs to speak with the authors of the PowerPoint, but the FAA has refused them permission to do so,” the filing reads. It asks the court to rule that the FAA “should not block access to relevant, exculpatory evidence”.
Following the second crash, aviation regulators around the world grounded the jet. The Federal Aviation Administration lifted the grounding in November 2020, after Boeing made design and software changes to MCAS. Other countries’ civil aviation authorities followed.
Last month, US federal judge Reed O’Connor delayed until 7 February 2022 the start of the criminal trial against Forkner, citing the need for his legal team to review information related to the case. The trial had been previously scheduled to begin on 15 December.
The defence had requested a later trial, saying they needed more time to sift through databases containing some 67 million pages of documents related to the case, and to identify witnesses. In a November hearing, lawyers compared the discovery process to “drinking from a fire hose”.
According to the government’s charges, Forkner learned during a simulator session that the MCAS system operated at a slower speed than Boeing had previously told the FAA. He intentionally withheld that information from the regulator, the government alleges. As a result, the FAA left mention of MCAS out of a document that defines training for Max pilots. Forkner disputes the charges.