American pilots Joseph Lepore and Jan Paul Paladino, whose Legacy 600 was involved in a collision with a Gol Airlines Boeing 737-800 over the Amazon jungle in September 2006, were found guilty by Brazilian federal judge Murilo Mendes last month of failing to verify the functioning of the transponder for more than an hour. All 154 people aboard the airliner perished in the accident, while Lepore and Paladino were able to land their damaged jet at a Brazilian military airfield.

The judge commuted a jail sentence of four years and four months into community service to be performed in the U.S., and he also suspended the pair’s pilot licenses. It is widely believed that the Brazilian sentence is not enforceable in the U.S.

Lepore and Paladino were found innocent of five of the six charges against them, including failing to follow the flight plan; turning off the transponder; and not reacting correctly to a communications failure. Additionally, the judge discarded allegations that the Tcas was never on during the flight, and that the pilots falsely affirmed that the Legacy was authorized to fly RVSM.

Judge Murilo issued identical verdicts for pilot-in-command Lepore and copilot Paladino, saying pilots bear equal responsibility for safety. The pilots will appeal the verdict. At press time, Murilo had yet to rule on the two air traffic controllers still charged in the case, one of whom a military court already sentenced to 14 months for manslaughter.

The guilty verdict turned on the question of whether a white TCAS OFF{{SMALL CAPS}} alert appeared on the Legacy’s panel, and the judge based his ruling largely on an exchange captured by the cockpit voice recorder: “Dude, you got the Tcas on?” followed by: “Yes, the Tcas is off.” While ATC has primary responsibility for verifying the Tcas function, the judge ruled that this does not free the pilots of blame.

What worries safety experts about this conviction is the criminalization of accidents. At last month’s European Business Aviation Convention & Exhibition (Ebace) in Geneva, AIN spoke with NBAA senior vice president of operations Steve Brown about this disturbing trend.

“Criminalization has a chilling effect on safety enhancements in the aviation community. We rely on willing participation by those involved in an accident to avoid repeat accidents,” Brown said. “It is no benefit to anyone to criminalize aircraft accidents. We have to preserve the safety culture and science and discipline in accident investigations to result in a positive safety outcome.”

Brown said Brazil’s “different” legal system allowed for the conviction, even though NTSB and Brazil ANAC accident reports show that the errors made were by the Brazilian air traffic controllers.

But Brazil is not alone when it comes to criminalization, and Brown said the concept is gradually evolving around the world. “The Concorde accident in France is being criminalized, so this is something that can happen even in developed countries.”

Listen to a podcast interview with Brown on this topic at www.ainonline.com/audio.