Houston G3 CVR Transcript Part I

[FN FAL]

State prosecutors are not bound by any special "aviation" laws preventing them from charging you with involuntary manslaughter or criminal negligence in a homicide involving aircraft operation. There have been a growing number of laws passed on the books that have defined crimes that are a result of negligent acts, which do not require proving Mens Rea.

http://www.aviationlawcorp.com/content/crimliab.html

Standards of Liability

Civil Liability

Simple negligence is the least culpable level of legal liability. It is usually defined as the failure to exercise "ordinary care in the circumstances." Liability does not attach to such misconduct unless the negligence is a cause of injury or damages. In the aviation industry, the violation of regulations such as the FARs, and failure to comply with good operating practices or procedures, may constitute a breach of the duty to exercise ordinary care. In this regard, airline and Part 135 charter operators are held to the "highest duty of care" because they act as common carriers when holding themselves out to the public — they carry anyone for hire. Private operators on the other hand are generally held to the standard of "ordinary care."

Federal Aviation Administration enforcement actions involve a different type of civil liability. The FAA is empowered by the Federal Aviation Act to issue certificates and licenses to regulate the industry. As a result, the FAA can bring enforcement actions and revoke or suspend the certificates or issue civil penalties when there have been violations of their rules. These proceedings are administrative law proceedings and are not criminal in nature. Indeed the FAA itself cannot bring criminal charges against aviation professionals; the FAA must refer such charges to the U.S. Justice Department for prosecution.

Criminal Liability

Criminal liability is established by federal criminal statute and various state criminal laws. It is important to understand that every state has its own criminal laws, and these laws vary significantly from state to state. Further, the states are not preempted from enacting laws to impose criminal sanctions on aviation personnel who engage in reckless conduct leading to injury, death or property damage. As discussed previously, many federal criminal statutes relevant to aviation are quite straightforward. However, state criminal laws are often very confusing, especially when it comes to unintentional homicides. These laws present the greatest risk to the average aviation professional who has been exposed to criminal liability as a result of an accident which involves serious personal injury or death.

Some states have established criminal liability for unintentional homicide with an offense they call "criminal negligence." Other states punish negligent homicide as a form of "manslaughter." This charge is often called "involuntary manslaughter." These criminal charges require more than just simple negligence. In fact, most well-written state laws require more than "gross negligence" for a criminal prosecution.
A Model Penal Code has been adopted as law by some states. Under the Model Penal Code, a person can be criminally liable for "negligent homicide" if he created a risk of serious injury or death and "should have been aware" that he was creating such a risk by his conduct but nevertheless continued to act regardless of the foreseeable consequences.

Manslaughter is the next step up in criminal culpability for unintentional homicide. The Model Penal Code defines "manslaughter" as conduct which creates a substantial and unjustifiable risk of homicide, whereby the actor actually perceives the risk that he might kill somebody but ignores the risk and continues with the highly dangerous activity anyway. Many states do not make a distinction between negligent homicide and manslaughter. Instead, they have their own laws that criminalize conduct if it involves some form of "reckless, willful or wanton" misconduct beyond the level of simple negligence. Some states like Florida have a charge called "third-degree murder" for the unlawful killing of a person while engaged in an underlying felony. Florida Statute 782.04(4).

Criminal prosecutors and defense attorneys examine the case law in their jurisdictions to determine whether, under a particular set of circumstances, a certain type of conduct fits the definition of "negligent homicide," "manslaughter," or "third-degree murder." It should be apparent that such an evaluation is highly subjective. A criminal prosecutor can bring criminal charges against somebody who is involved in causing another person's death, while another prosecutor may exercise his discretion and refuse to bring criminal charges for the same misconduct. Typically after fatal air crashes, prosecutors allow the matter to be resolved as wrongful death litigation in the civil courts. In deciding whether to bring criminal charges prosecutors are sometimes influenced by political considerations, social pressures and a public outcry for justice after a particularly horrendous accident.

About the author. . .

Phillip J. Kolczynski , manages his own law firm in Irvine, (Orange County) California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia.

Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, Phil was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multi-engine ratings.

 

[ultrarunner]

Opps....I meant criminal charges...sorry.

 

[ultrarunner]

State prosecutors are not bound by any special "aviation" laws preventing them from charging you with involuntary manslaughter or criminal negligence in a homicide involving aircraft operation. There have been a growing number of laws passed on the books that have defined crimes that are a result of negligent acts, which do not require proving Mens Rea.

http://www.aviationlawcorp.com/content/crimliab.html

FN FAL, could one use the 'willful misconduct' argument more successfully in attempting to prosecute at the criminal level.

 

[2000flyer]

Someone suggested tower giving them a "special" to be able to land. I just can't see any controller worth his/her salt doing such a thing. Lets say in this case they did and the aircraft crashed. Would you stick your neck out so far for what was probably just another plane on approach?

As for shooting the approach with 1/4 mile vis being reported. Under Part 91, it can be 0X0 and you can shoot approaches until the tanks run dry.

2000Flyer

 

[jimpilot]

Not True

Hey, is it me or does it seem that 91/135/Corp. jets crash a lot more than airlines (who fly a lot more).

Not true for corporate/ 91

 

[Snakum]

proving Mens Rea

Wasn't he a famous photographer back in the 40s?


Minh Ray

 

[FN FAL]

Wasn't he a famous photographer back in the 40s?


Minh Ray

Nine.

 

[Big Duke Six]

Quote:
Someone suggested tower giving them a "special" to be able to land. I just can't see any controller worth his/her salt doing such a thing. Lets say in this case they did and the aircraft crashed. Would you stick your neck out so far for what was probably just another plane on approach?

As for shooting the approach with 1/4 mile vis being reported. Under Part 91, it can be 0X0 and you can shoot approaches until the tanks run dry.

I can't be the only one who has been asked by a controller what minimums I needed, then suddenly the weather improved.

And you're right, these guys should have been safe flying this approach down to the runway. But it's that one time when things don't go right that gets you. I think the consensus is that yes they were legal, but a missed approach should have been executed immediately after discovering they had the wrong freq's tuned. Therein lies the lesson: that your own experience may be your worst enemy. It can breed reckless overconfidence if you are not constantly vigilant. It's the fear of death that keeps us out of trouble, and it naturally subsides with experience. Once that goes away, none of us are immune from complacency.

 

[Indapool]

I can't be the only one who has been asked by a controller what minimums I needed, then suddenly the weather improved

Amen to that. I can't begin to count the # of times I was a Lifeguard and the weather "suddenly" went above minimums. Always appreciated it but NEVER pushed it. At the slightest onset of "WTF" the little levers in the center go forward and the big stick goes back.

Ever have one of those approaches were you fell like you were 3 seconds behind the airplane and your not sure why? I have..it's a BIG RED FLAG.

We have all been there at least once..recognizing it and getting the hell out of the situation is the tough part. My guess is one or both of them had that nagging little voice inside asking "WTF!!"

WX was crap
It was early
Capt. had to make an effort to find what he was looking for(unfamiliar)
FO would not STFU
Created thier own distractions (blah,blah,blah all the way down)
Deviation from standard procedures(tune and Ident)
No real SA on either pilots part
And above all..Complacency

The day I think I'm too smart or experienced to pay attention when the hairs on the back of my neck stand up is the day I become a greeter at Walmart.

 

[jetdriven]

they crashed on the beltway, a good 2-3 miles from the runway.