The federal district court judge overseeing the criminal case against Boeing in the crashes of two 737 MAX8 jets that killed 346 people rejected the plea agreement. The judge took particular issue with the corporate monitor requirements outlined in the plea agreement.
That means that Boeing still may have to face criminal charges at a trial for the deaths of those killed.
“In a case of this magnitude, it is in the utmost interest of justice that the public is confident this monitor selection is done based solely on competency,” U.S. District Court Judge Reed O’Connor wrote in a 12-page opinion. “The parties’ diversity, equity and inclusion (DEI) efforts only serve to undermine this confidence in the government and Boeing’s ethics and anti-fraud efforts. Accordingly, the diversity-and-inclusion provision renders the plea agreement against the public interest.”
But Judge O’Connor was also concerned about the overall structure of the plea deal, writing that after three years “it is fair to say the government’s attempt to assure Boeing’s compliance has failed.”
Judge O’Connor said that in addition to DEI considerations, he rejected the plea agreement because “its compliance-monitor provisions erroneously marginalize” the court.
The law requires district courts to impose a sentence that, among other things, promotes respect for the law, Judge O’Connor wrote.
“The parties recognize that retention of an independent anti-fraud monitor is an appropriate condition of probation in this case,” Judge O’Connor wrote. “Compliance with the independent monitor’s recommendation therefore would necessarily be an appropriate condition of probation under the sentencing authorities. The plea agreement’s process for selecting the anti-fraud monitor, including prohibiting the Court from considering violations of the monitor’s anti-fraud recommendations, improperly marginalizes the Court.”
“The government has monitored Boeing for three years now. It is not clear what all Boeing has done to breach the deferred prosecution agreement. The victims assert the ‘government was forced to find that Boeing violated the agreement after the door fell off the Alaska airplane.’ Boeing hints that it may have legitimate arguments in opposition to the Government’s determination of breach.”
“Regardless, taken as true that Boeing breached the deferred prosecution agreement, it is fair to say the government’s attempt to ensure compliance has failed. At this point, the public interest requires the Court to step in. Marginalizing the Court in the selection and monitoring of the independent monitor as the plea agreement does undermines public confidence in Boeing’s probation, fails to promote respect for the law, and is therefore not in the public interest. Accordingly, the Court cannot accept the plea agreement.”
Paul Cassell, the lawyer for the families, said that “Judge O’Connor’s emphatic rejection of the plea deal is an important victory for the families in this case and, more broadly, crime victims’ interests in the criminal justice process.”
“No longer can federal prosecutors and high-powered defense attorneys craft backroom deals and just expect judges to approve them,” Cassell told Corporate Crime Reporter. “Victims can object – and when they have good reasons for striking a plea, judges will respond.”
“Judge O’Connor has recognized that this was a cozy deal between the government and Boeing that failed to focus on the overriding concerns – holding Boeing accountable for its deadly crime and ensuring that nothing like this happens again in the future,” Cassell said. “This order should lead to a significant renegotiation of the plea deal to reflect the 346 deaths Boeing criminally caused and put in place proper monitoring of Boeing to ensure that it never again commits a crime like this in the future.”
The plea deal of July 24 that is at issue called for Boeing to plead guilty to a single charge of conspiracy to defraud the Federal Aviation Administration (FAA) during the certification process of the Boeing 737 MAX8 of a new software system so that a less rigorous level of training for pilots would get the aircraft to market faster.
Judge O’Connor rejected the entire plea deal that also included an additional monetary penalty of $243.6 million.