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
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
.. 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
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
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.