Families of victims of the two 737 MAX crashes have filed a motion detailing how the Department of Justice lied and violated their rights through a secret process that led to Boeing receiving a favorable deferred prosecution agreement. 

They now seek remedies that include rescinding the provision that allowed Boeing to receive immunity from criminal prosecution.

On January 7th, 2021, the Department of Justice entered into the deferred prosecution agreement with Boeing related to the company’s far-reaching conspiracy that concealed safety problems from the Federal Aviation Administration (FAA), resulting in two crashes of their 737 MAX aircraft killing 346 passengers and crew members. 

According to the agreement, Boeing’s “response frustrated the Fraud Section’s investigation” during its first six months. 

Earlier this year, Columbia Law Professor John Coffee, author of Corporate Crime and Punishment: The Crisis of Underenforcement, called the Boeing deferred prosecution agreement one of the worst he’s ever seen.

Coffee pointed out that the agreement included an unusual provision finding that a compliance monitor was not necessary because “the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior mismanagement.”

“That is without precedent,” Coffee told Corporate Crime Reporter at the time. “I have not seen that anywhere else and I’ve looked at a number of deferred prosecution agreements. Prosecutors themselves are not conducting the investigation.” 

Since the agreement was reached, only one employee of Boeing, Mark Forkner, has been charged with a crime despite the fact that the indictment makes clear that Forkner’s criminal acts were not undertaken in rogue fashion and without the direction or knowledge of others within Boeing.

“Boeing and the government deliberately excluded those who were most concerned with the negotiations: the families of the victims,” said Paul G. Cassell, a former federal judge who is currently a professor of law at the University of Utah and considered one of the nation’s leading experts on crime victims’ rights. “If the government is going to craft a deferred prosecution agreement for a serious felony crime, including one that gives a corporation like Boeing immunity, it cannot do so secretly. In concealing its negotiations from Boeing’s victims, the Government plainly violated the Crime Victims’ Rights Act – a broad bill of rights protecting victims of federal crimes.”

In the complaint, the families alleged that the deferred prosecution agreement’s facts “appear to have been carefully crafted to downplay the depth and breadth of Boeing’s crimes.”

“Had the victims been allowed to confer with the government, as the CVRA requires, they would have presented the government with evidence exposing the pervasiveness of Boeing’s wrongdoing.”

The families first learned of the deferred prosecution through news reports, as the Department of Justice never reached out to or conferred with them in violation of their rights under the Crime Victims’ Rights Act. 

The Justice Department told some of them that no criminal investigation into Boeing even existed.

In February 2020, a representative of the victims’ families contacted the Victims’ Rights Ombudsman at the Department of Justice, seeking an update on all matters related to the ET302 crash. 

Despite media reports suggesting that the Department was investigating the company, the Ombudsman stated the Department was not aware of any investigation and would notify the families in accordance with the CVRA if there were one. 

The representative for the victim’s families later contacted the FBI Victims’ Witness Office and was told by a victim specialist there was no such investigation.

The families in their motion said that the U.S. attorney responsible for negotiating the deferred prosecution agreement with Boeing quickly joined the law firm that represented Boeing, Kirkland & Ellis, less than five months later. 

Kirkland attorney Mark Filip, who signed the deferred prosecution agreement on behalf of Boeing, welcomed the now former U.S. Attorney, Erin Nealy Cox, to their team in the firm’s hiring announcement.

The victims’ families are seeking relief that includes an order for the government to confer with them and provide evidence related to Boeing’s crimes, require Boeing to appear for a public arraignment where the victims can be heard, and for the court to exercise its supervisory powers over the deferred prosecution agreement which may include rescinding the immunity provision.

“If the Department of Justice had advised us of our right to confer with it about the crimes associated with the crash, we would have urged the Department to hold Boeing accountable to the full extent of U.S. criminal law,” said Naoise Connolly Ryan, whose husband Mick died in the ET302 crash. “We would have pointed out that the Boeing employees whose conduct form the basis of the Deferred Prosecution Agreement were acting in furtherance of Boeing’s program goals, set at the highest levels of the company. Boeing should be fully prosecuted. The agreement reached under the Trump administration is merely a slap on the wrist that wrongly holds no executive accountable.”

A number of corporate criminal deferred prosecution agreements have been reopened in recent years.

Most recently last week, the Justice Department said that Monsanto violated a 2019 deferred prosecution agreement relating to the storage of a banned pesticide. Monsanto was forced last week to plead guilty and pay $12 million.

The Justice Department did not return calls seeking comment for this story.