If you are driving down the road and, distracted by your phone, you cross the center line and hit another car head on killing its driver, you are in all likelihood going to be prosecuted for manslaughter, be found guilty and end up serving time in jail.

But Boeing puts up a new plane (the 737 MAX) that it knows has a flight control system (the Maneuvering Characteristics Augmentation System or MCAS) that will take control of the airplane in certain situations and force the nose of the plane down — and it doesn’t tell pilots details about the MCAS. That MCAS contributed to taking down two planes in under six months killing all 346 passengers and crew on board.

Boeing CEO Dennis Muilenburg admitted that “it’s apparent that in both flights, the MCAS activated in response to erroneous angle of attack information.”

And Boeing kept pilots in the dark about potential failure modes that could result in a taxing mental and physical struggle in the cockpit with just seconds to execute correct decisions and maneuvers.

Pilots complained saying that it is “unconscionable” that Boeing, the Federal Aviation Administration and the airlines had pilots flying without adequate training or sufficient documentation about the MCAS system, that the flight manual “is inadequate and almost criminally insufficient.”

(In July 2019, the Wall Street Journal reported that “an internal Federal Aviation Administration (FAA) risk analysis after the first of two Boeing 737 MAX airliner crashes showed the likelihood was high of a similar cockpit emergency within months.”)

And yet,  Boeing and its executives are not prosecuted for manslaughter. 

You and I kill one person, we are prosecuted for manslaughter and will go to jail.

Boeing and its executives kill 346, and no manslaughter prosecution for Boeing or Boeing’s executives.

How can that be right?

It can’t be.

It’s wrong. 

And it must be made right.

Manslaughter charges can be brought at the federal and state level.

At the federal level, manslaughter charges can successfully brought, and have been successfully brought against corporations. 

Most prominently, in November 2012, BP pled guilty to eleven counts of felony manslaughter for its conduct leading to the 2010 Deepwater Horizon disaster that killed 11 people and caused the largest environmental disaster in U.S. history.

But for Boeing, a federal criminal charge would end earlier this year not in a guilty plea for manslaughter.

Not in a guilty plea for anything. 

Boeing and its lawyers at Kirkland & Ellis apparently went shopping for a Federalist Society U.S. Attorney – Erin Nealy Cox – before a Federalist Society Judge – Reed O’Connor, in a district, the Northern District of Texas, that had no connection to the case – no victim, no Boeing connection, nothing.

And that lineup led to a Boeing victory – no guilty plea, no executives charged, no manslaughter charge, just a one count information charging conspiracy to defraud the U.S. and a deferred prosecution agreement with no monitor – all authorized by Cox for the Justice Department and Kirkland & Ellis partner Mark Filip for Boeing.

And the whole thing made you wonder – when Erin Nealy Cox leaves the Justice Department, where will she end up?

At Kirkland & Ellis, of course, where Boeing’s lead criminal defense lawyer, Filip, last month welcomed her to the firm. 

“Erin is an exceptional trial lawyer and leader known for her strong integrity and unmatched expertise in supervising and conducting large, complex criminal investigations,” Filip said.

Columbia Law Professor John Coffee wasn’t as complimentary.

“There never seemed to be an adequate, or even a plausible reason for why this case was brought in Texas when Boeing had no connection whatsoever with that state,” Coffee told Corporate Crime Reporter in response to Kirkland & Ellis hiring of Cox. “Now, the U.S. Attorney’s joining the defense counsel’s law firm suggests that they were both on the same wavelength about finding a quick and gentle resolution of the case that did not embarrass or injure Boeing. I cannot say that this was unlawful or even unethical on the available evidence, but this is not how an adversarial system of justice normally works or should work. This is a very friendly system of criminal justice for large corporations.”

Friendly it is.

But justice for Boeing is alive at the federal level.

How?

Well, remember — the prosecution is deferred, not extinguished.

Or as Judge O’Connor wrote in an order dated January 21, 2021, “prosecution has been deferred by the attorney for the government pursuant to written agreement with the company for the purpose of allowing the company to demonstrate it’s good conduct.”

That means the Justice Department can re-open the case. 

And it should.

What about a state prosecution of Boeing for manslaughter?

There is a long track record of states bringing manslaughter charges against companies for workplace and consumer deaths. 

Los Angeles County under District Attorney Ira Reiner used to open criminal investigations into every workplace death and as a result, brought many corporate manslaughter prosecutions. 

Last month, Corporate Crime Reporter contacted five state prosecutors offices that, unlike the northern District of Texas, at least had some connection to the Boeing case.

Cook County, Illinois is home to Boeing corporate headquarters. And it’s home to one of the eight American victims of Boeing’s recklessness.

We wrote to the State’s Attorney of Cook County, Kimberly Foxx and pointed out that Antoine Lewis, an Army Captain from Matteson, Illinois in Cook County was killed aboard the Boeing 737 MAX 8 that went down outside Addis Ababa, Ethiopia.

We sent Foxx a couple of historic articles outlining the history of corporations being criminally prosecuted for murder, including a May 1985 New York Times article titled Can a Corporation Commit Murder? by E.R. Shipp.

We also sent Foxx a 1987 article from the Multinational Monitor magazine by William Maakestad titled Redefining Corporate Crime, outlining the 1979 reckless homicide prosecution of Ford Motor Company and a slew of other homicide prosecutions against corporations, mostly for workplace deaths. (Maakestad was a co-author, with Francis Cullen, of the classic corporate crime book on the Ford Pinto prosecution — Corporate Crime Under Attack: The Ford Pinto Case and Beyond (1987).)

We also sent Foxx a copy of an article we had written soon after the Ethiopian Airlines crash titled — Prosecute Boeing and Execs for Manslaughter.

We asked Foxx for her thoughts on the possibility of bringing a manslaughter case against Boeing in Cook County.

Crickets.

We also wrote to George Gascon, the Los Angeles District Attorney. Los Angeles County was home to 43-year old Matt Vecere who also lost his life aboard the Ethiopian Airlines flight.

Crickets.

Two other district attorneys in California did answer.

Melvin Riffel and his brother Bennett Riffel were on a travel adventure. They were on the Ethiopian Airlines plane when it went down. 

Melvin Riffel lived in the northern California town of Redding, in Shasta County, where Stephanie Bridgett is the District Attorney. 

Same question to DA Bridgett — what about a manslaughter prosecution against Boeing and the responsible executives?

“The investigating agency has not submitted it to our office for review for possible charges,” a DA spokesperson responds. “Outside of that information, we cannot comment.”

Bennett Riffel lived an hour south of his brother in Chico in Butte County California where the District Attorney is Michael Ramsey.

“I did not know one of the victims of the Addis Ababa crash was a Butte County resident,” Ramsey writes. “Unfortunately I lack the legal jurisdiction to prosecute such a ‘foreign’ case where the death did not occur in Butte County nor does Boeing have any ties to Butte County.”

We received a similar response from Andrea Harrington who is the District Attorney in Berkshire County, Massachusetts, home to 24-year old Samya Stumo who died in the Ethiopian Airlines crash.

“We want justice for Samya and her family as well,” a spokesperson for Harrington’s office writes back. “However, we have jurisdiction over crimes that occur within Berkshire County. The Department of Justice would be the appropriate enforcement agency to contact.”

We write back to Harrington and Ramsey that for criminal manslaughter cases like the Boeing case, “there is a criminal law doctrine called the effects doctrine.” 

The effects doctrine provides that even if a crime is committed outside the state, if the crime had harmful effects on the citizens of the state, the state would have jurisdiction.

The effects doctrine was spelled out in a U.S. Supreme Court decision (Strassheim v. Daily, 221 U.S. 280 (1910).) written by Justice Oliver Wendell Holmes. 

“Acts outside a [state’s] jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.” 

Interestingly, Ramsey and Bridgett have both been recently involved with corporate manslaughter cases against Pacific Gas & Electric.

“I am very familiar with criminal prosecution of corporations for homicide,” Ramsey wrote. “Last year our office successfully prosecuted one of the largest utility companies in the U.S. — Pacific, Gas & Electric —  for one count of reckless arson and 84 counts of manslaughter for their reckless lack of maintenance of their electrical grid, which led to the burning down of several of our communities here.” That would be the destruction of thousands of homes and the deaths of 85 residents.

And Bridgett announced last week that Pacific Gas & Electric will face criminal charges because its equipment sparked the Zogg Fire last year that killed four people and destroyed hundreds of homes. The charges will be filed before September 27, the first anniversary of the fire. 

Bridgett, Foxx, Gascon, Harrington and Ramsey — or any other state prosecutor with jurisdiction over Boeing — must take a careful look at the facts underlying the Boeing manslaughter. And then bring charges.

The federal criminal settlement was, as Professor Coffee put it, “a quick and gentle resolution of the case that did not embarrass or injure Boeing.”

With the prosecutor now working for the Boeing’s criminal defense firm, Attorney General Merrick Garland needs to appoint an independent prosecutorial team, re-open the case and delve deeply into the crimes that took the lives of 346 innocent passengers and crew.

Boeing will never settle for a plea to manslaughter charges as they settled for the deferred prosecution agreement. 

And Boeing will never admit reckless behavior in the civil lawsuits now pending in federal court in Chicago.

That means an open public trial on the merits.

Let’s open up the evidence for all to see.

So that we can see first hand the extent of the criminal behavior by Boeing and its top executives.