Trial starts for former Boeing pilot facing fraud charges over 737 Max

Lawyers say engineers kept Mark A. Forkner in the dark about changes to the system, which played a role in two crashes that killed 346 people

The Boeing 737 Max was involved in two crashes that killed 346 people. Reuters

A federal prosecutor said that a former Boeing test pilot lied to regulators about changes to a critical flight-control system on the 737 Max to reduce the cost of pilot training and save the company tens of millions of dollars.

However, a defence lawyer said Boeing engineers kept Mark A. Forkner in the dark about changes to the system, which played a role in two crashes that killed 346 people.

Mr Forkner went on trial in US district court in Fort Worth on four charges of fraud. He is the only person facing criminal charges in the case, which brought widespread condemnation to Boeing.

As the trial started with jury selection and opening statements, Mr Forkner spoke only briefly, when the judge asked for his plea.

“I am not guilty,” he said, standing and turning to face the jury.

Based on court filings by both sides, the trial is likely to feature testimony from technical experts and also internal Boeing communications to shed light on discussions about the Max inside the company. Prosecutors will also attempt to use Mr Forkner's own text messages against him, especially one in which he said, “so I basically lied to the regulators [unknowingly].”

“The defendant had contempt for these regulators, and he mocked these regulators,” prosecutor Scott Armstrong told jurors, adding that as Mr Forkner learnt more about changes to the flight-control system called MCAS, “He doubled down on the lies.”

Defence lawyer David Gerger said his side will show jurors that Boeing engineers withheld information from Mr Forkner. And it wasn't Mr Forkner who set out to save the company money by minimising pilot-training requirements, that objective came down directly from Boeing's board of directors, he said.

The opening statements came after the selection of a jury of 11 men and one woman, plus four alternates. An American Airlines pilot was dismissed; so was a man who said he had flown several times on Boeing Maxes.

Judge Reed O'Connor made it clear there was no way to disqualify every potential juror who had read or seen news accounts about the Boeing Max. He quizzed several people whether they could set aside their notions of the issue and focus on evidence that will be presented when testimony starts on Monday.

Until he left in 2018, Mr Forkner was Boeing's chief technical pilot for the Max, which gave him a key role in evaluating the differences between the Max and previous 737s, and deciding how much training pilots needed to fly the new version.

According to the indictment, Mr Forkner knew about changes that made a key flight-control system activate more often than originally planned, but he withheld that knowledge from Federal Aviation Administration regulators. As a result, information about the new flight-control system, MCAS, was deleted from an FAA report and aircraft manuals. Most pilots didn't know about it.

MCAS activated on faulty sensor readings minutes before crashes in 2018 off the coast of Indonesia and 2019 in Ethiopia. It repeatedly pushed the noses of the planes down, and pilots were unable to regain control.

The indictment does not blame the crashes on Mr Forkner, but his lawyers said he would not be facing criminal charges if the crashes had not occurred.

“The investigation could have landed on Boeing, or its senior executives who were once ‘subjects’ but now are witnesses at trial,” the defence lawyers wrote in a filing. Fear of being associated with the crashes caused witnesses “to curry favour with the prosecution”, they said.

The list of witnesses for the prosecution includes three Boeing employees, government experts, and representatives from two big Boeing customers: Southwest Airlines and American Airlines.

The defence could call more than two dozen current or former Boeing employees, including several test pilots and Curtis Ewbank, an engineer who quit after alleging that his bosses rejected safety improvements to the Max on cost grounds. Mr Forkner is listed as a potential witness.

Boeing reached a settlement with federal officials to avoid prosecution for conspiracy. The company paid a $244 million fine as part of the January 2021 agreement.

Separately, families of passengers who died in the crashes are asking another federal judge in Fort Worth to undo the Boeing settlement and consider criminal charges against the company and top executives, who they say put profit above safety.

Family members argue that Chicago-based Boeing rushed a new version of the 737 into production because European rival Airbus was far ahead of it in developing a more fuel-efficient plane. MCAS was added to the Max to accommodate new, larger engines on the 50-year-old 737 design.

“The 737 has had its day,” said Adrian Toole, a British man whose daughter Joanna died in the second Max crash. “The whole thing should have been scrapped, and they should have put a new plane on the drawing board.”