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38 Brief 11 (2008-2009)
Criminalization in Aviation - Are Prosecutorial Investigations Relegating Aviation safety to the Back Seat

handle is hein.journals/tbrief38 and id is 157 raw text is: AIre Prosecutoriai Investig ations Relegating 11vidt baneS yto Mhe lac eat? By Richard M. Dunn, Sherril M. Colombo, and Allison E. Nold viation accident investigations around the world traditionally have fallen under the purview of administrative agencies. In the United States, the National Transportation Safety Board (NTSB) handles aircraft accident investiga- tions to uncover the reasons for crashes and attempts to ensure that such accidents do not recur. Yet recent years have witnessed criminal investigative agencies and their prosecutorial arms launching aviation acci- dent investigations as well. In that process, prosecutors worldwide have often transformed merely negligent conduct into something more, charging aviation employees, from mechanics and pilots to business executives and aviation oversight officials, with crimi- nal conduct. Oftentimes these employees face serious time in jail, hefty fines, or both. Some speculate that fear of such criminalization issues contributed to the decision of C. B. Sullenberger-the pilot who success- fully landed an Airbus A320 in the Hudson River and was immediately hailed as a hero-to delay any public discussion of that incident for weeks. Given the current economic and regulatory envi- ronment, with its demands for greater transparency and the oversight of corporate entities, the prosecu- torial trend in aviation investigations is unlikely to change significantly in the short term. And yet we must ask ourselves, what does this trend accomplish? Are we safer by trying to understand accidents and the reasons why they occur or by threatening aviation executives and w orkers with jail and jeopardizing the very investigations that may preclude such accidents from happening again? While some would cast this as a false dichotomy, human nature and actual facts suggest otherwise. If mechanics, pilots, and other business and aviation offi- cials are faced with the possibility of prosecution-and these are the very people we rely upon to supply critical information in administrative safety investigations- can we not expect them to be less willing, or even unwilling, to cooperate for fear of self-incrimination? The inevitable outcome is that investigations will be undermined and critical information necessary for preventive action delayed or irretrievably lost. Further, the tension between criminal and administrative avia- tion investigations has already reared its head. As one example, Italy's Agenzia Nazionale per la Sicurezza del Volo (ANSV), the Italian Air Safety Board, reported that it is unable to conduct a thorough investiga- tion into the February 7, 2009, fatal accident involv- ing a Cessna 650 Citation III near Rome.' Why? For one thing, the cockpit voice recorder and flight data recorder were seized for a judicial inquiry, '' For another, the Italian agency was required to relinquish documents vital to the investigation because present regulations in Italy give primacy to the investigation of the prosecutor, whose work takes precedence over ANSV investigations. The Italian Ministry of Justice subsequently attempted to suppress its intrusion on the ANSV investigation by stipulating that no tampering with or alteration of the evidence would occur. The Ministry further agreed that, compatibile with public safety requirements, the recovery of wreckage would be coordinated with ANSV personnel4 Despite these offerings, a month later (and at the time of this writ- ing) the cockpit voice recorder and the flight data recorder data of the accident were still exclusively in the hands of the responsible judicial authority. The aviation industry, and more importantly the worldwide public, cannot afford this dangerous result. Criminal enforcement of traditionally civil wrongs should not be placed above aviation safety The sig- nificant number of fatalities that unfortunately follow air disasters do not justify the overcriminalization of conduct that falls squarely within the civil domain. photograph from AP Images THE BRIEF SPRING 2009 11 . . . . . . ..... ... . . . . ... ... . --------------- . . . . - 7___ . . . . . . . . . -----------..--..-.------------

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