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| Meg Garvin |
This DPA purports to eliminate the possibility that Boeing and its upper-level executives would be prosecuted for illegally concealing safety issues about the 737 Max that led to the crashes.
The families asked the attorney general to support them in a motion they filed last December — in U.S. v. The Boeing Company in the U.S. District Court for the Northern District of Texas — challenging the DPA because the DOJ under the prior administration never afforded them their right to confer with prosecutors.
Garland and the DOJ chose otherwise, and in its response to the families' motion, stated that the DOJ "apologizes for not meeting and conferring with these crash victims' beneficiaries before entering into the DPA," but argued that the families of those who died in the crashes are not "crime victims."[1]
In so doing, the DOJ missed an opportunity to create an important precedent for crime victims' rights. The courts should now step in to correct the error.
In January 2021, just days before the change in administrations, the DOJ and Boeing agreed to a DPA, which effectively granted immunity to the corporation from any criminal prosecution for the crashes of two 737 Max planes.
Simultaneously, Boeing agreed to a statement of facts in which it admitted it illegally conspired to deceive the Federal Aviation Administration about the safety of the 737 Max.
Simultaneous admission and release from all criminal liability in a case involving 346 deaths is disturbing. Regardless of the merits of the agreement, however, it is simply illegal.
Nearly two decades ago, in a rare moment of bipartisan consensus, the U.S. Congress passed the federal Crime Victims' Rights Act.[2]
The CVRA promises federal crime victims the reasonable right to confer with prosecutors handling cases. It also promises victims that they will receive timely notice of any deferred prosecution agreement and that they will "be treated with fairness and with respect for [their] dignity."
With the CVRA, Congress sought to ensure that crime victims have a meaningful role in criminal justice, including providing input into plea agreements. This input is not a veto, simply a voice.
In reaching its deal with Boeing, however, the DOJ kept the victims' families wholly in the dark.
Further, the DOJ's investigation into Boeing's misdeeds spanned about two years. According to filings from the crash victims' families, throughout this period the department failed to confer with them.
Even worse, when representatives for the victims contacted the department's own victims' rights ombudsman, seeking to confer with prosecutors, the ombudsman told them there was no active criminal investigation into Boeing, an admitted inaccurate statement.
The victims' families only learned of the investigation when prosecutors publicly announced the DPA, violating the timely-notice provision of the CVRA.
Controlling U.S. Court of Appeals for the Fifth Circuit precedent, established in 2008 in In re: Dean, says victims "have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached."[3]
The DOJ, however, maintains that the crash victims are not "crime victims" because they were not directly and proximately harmed by Boeing's crime.
Under a two-pronged test outlined by the Fifth Circuit in 2011 in In re: Fisher, a person is a crime victim if the "offense is a but-for cause of the harm," or if the "harm is a reasonably foreseeable consequence of the criminal conduct."[4]
The government says that the evidence in the record does not support the position that but for Boeing's conspiracy to defraud the FAA, the two planes would have landed safely, and that any causal link between Boeing's fraud and the plane crashes was too attenuated.
But the DOJ bases its position on the record — a record created by it and Boeing when crafting the DPA.
A fuller understanding of the case, as presented by the victims' attorneys, reveals that Boeing concealed safety defects when the 737 Max was rolled out, presumably because the revelation would have made the plane less marketable.
There can be no doubt that the victims' attorneys will present this and other evidence in court as this case proceeds, thereby broadening the record.
As the record is further unveiled, it is likely to support the notion that when a company like Boeing deceives a safety regulator, terrible consequences such as plane crashes are entirely foreseeable
For anyone who follows how victims' rights are treated in our justice systems, the treatment of victims in the Boeing case came as less of a shock and more of an expectation. For too long, victims have been viewed as an inconvenience or an obstacle to justice.
Another recent case is eerily similar in its exclusion of victims: the Jeffrey Epstein case. In 2008, the DOJ negotiated a deal with a wealthy and powerful defendant, providing Epstein and his co-conspirators immunity from federal prosecution for sex trafficking in Florida.
Just as in the Boeing case, the DOJ kept victims in the dark. Many of those harmed by Epstein's crimes did not find out about the plea deal until long after it was agreed to.
The victims fought to have their rights vindicated in court for more than a decade.
In 2019, the U.S. District Court for the Southern District of Florida ruled in Doe v. U.S. that prosecutors had violated the victims' CVRA rights in not conferring with them prior to finalizing the deal.[5] But before a remedy could be determined, Epstein died by apparent suicide.
Recently, the petitioners in Wild v. Southern District of Florida asked the U.S. Supreme Court to determine "whether the CVRA allows the Government to conceal secret, pre-charging non-prosecution agreements from victims."[6] But last month, the Supreme Court declined to take up the case.
In the Boeing case, the attorney general had the unique opportunity to do more than apologize to victims; he had the chance to honor the victims' rights and support the families' challenge to the DPA in the Boeing case.
With this simple move, prosecutors nationwide would have had clear direction — consult with victims prior to entering a plea agreement.
Instead, the courts will have to consider how to ensure that the victims or their families are made part of the process of resolving criminal charges — against Boeing, Epstein and others.
In the Boeing case, the victims' families have argued that the appropriate remedy is to set aside the DPA's immunity provisions, thereby creating an opportunity for the families to confer with prosecutors about criminally prosecuting Boeing, and ultimately be heard by a court prior to any plea being accepted.
The CVRA promises crime victims a meaningful participatory role in criminal cases. The courts should enforce the rights as Congress intended, which here, means agreeing with the victims' position.
Meg Garvin is the executive director of the National Crime Victims Law Institute and a clinical professor of law at the Lewis and Clark Law School.
Disclosure: NCVLI filed an amicus brief in the U.S. Supreme Court supporting the Jeffrey Epstein victims in Wild v. U.S. District Court for the Southern District of Florida.
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[1] Response by USA to The Boeing Company re: 15 Motion for Victim Rights for Findings that the Proposed Boeing Deferred Prosecution Agreement was Negotiated in Violation of the Victims' Rights and for Remedies for those Violations, USA v. The Boeing Company, (N.D.T.X., 2022).
[2] 18 U.S.C. § 3771.
[3] In re Dean, et al
, No. 08-20125 (5th Cir. 2008).[4] In re Fisher
, 640 F.3d 645 (5th Cir. 2011).[5] Doe 1 v. United States
, 359 F. Supp. 3d 1201.[6] In re Wild
, petition for certiorari.