crime victims

Paul Cassell | 10.16.2024 8:30 AM

For the last several years, I have represented families who lost loved ones in the crashes of two Boeing 737 MAX aircraft (see earlier posts here, here, and here). The families want Boeing held fully accountable for the harms caused by its federal conspiracy crime of defrauding the FAA about the safety of the 737 MAX. Last Friday, I argued before Judge Reed O'Connor (N.D. Texas) that he should reject the proposed plea agreement negotiated between Boeing and the Justice Department. Among other arguments, I explained that the proposed plea deal would improperly transform Boeing's conspiracy into a "victimless" crime rather than recognize the 346 deaths Boeing directly and proximately caused through its lies. This post summarizes a few of my arguments against the deal, along with linking to the main filings from both sides in the case–and the oral argument transcript–so that readers can see the competing positions. This post also includes an order from Judge O'Connor, issued yesterday, that directs DOJ and Boeing to provided additional briefing on a DEI provision in the proposed plea.

Some quick background to set the stage: In 2018 and 2019, two brand-new Boeing 737 MAX aircraft crashed in Indonesia and then Ethiopia, killing 346 passengers and crew. The Justice Department opened a criminal investigation into Boeing and soon developed compelling evidence that Boeing had defrauded by the FAA by concealing the capabilities of one of the plane's new software programs.

Faced with the Government's compelling evidence, in late 2020 and early 2021, Boeing secretly negotiated a lenient deferred prosecution agreement (DPA) with the Justice Department. The parties then filed the DPA with Judge O'Connor in the Northern District of Texas. Receiving no immediate objection to the DPA, Judge O'Connor allowed the agreement to move forward.

In December 2021, I filed an objection to the deal. I argued that the Justice Department had violated the rights of the families of the victims killed in the two crashes. In secretly negotiating the deal, DOJ violated the families right under the Crime Victims' Rights Act to confer with the prosecutors during the DPA negotiations. DOJ (and Boeing) responded that the families did not represent "crime victims," because the connection between Boeing's conspiracy crime and the crashes was too attenuated. But after two days of evidentiary hearings, in October 2022, Judge O'Connor disagreed—finding that the families represented "crime victims" and that the Justice Department had violated the families' CVRA rights to confer about the deal.

But ultimately, after a further hearing, in January 2023, Judge O'Connor ruled that while he had "immense sympathy for the victims and the loves ones of those who died in the tragic plane crashes resulting from Boeing's criminal conspiracy," he was unable to award them any remedy. I sought review in the Fifth Circuit. Last December, the Circuit concluded that, if a properly presented issue came before Judge O'Connor, he did have the power to take victims' rights into account in deciding how best to proceed.

Since then, in the wake of the Alaskan Air 737 doorplug blowout, in April the Justice Department concluded that Boeing breached its safety and compliance obligations under the DPA. Following that breach determination—which ended the deferral of prosecution provided by the DPA—in July Boeing and DOJ announced that they had reached........

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