The DOJ says the families of those killed in 2 Boeing crashes are not crime victims

The morning of March 10, 2019, started off in a typical but beautiful way for Naoise Connolly Ryan, who was living in Rome at the time.

"We had woken up like any other morning, very much missing him," Ryan says of her husband Mick Ryan, who was chief engineer for the World Food Programme, organization within the United Nations, was traveling in Africa.

"My two kids had crawled into the bed beside me and we sent a little (text) message to him, you know, just saying, just a picture of the kids and saying, 'Good morning, Daddy,' " Naoise Ryan says. "But the message had sent and wasn't delivered."

Michael (Mick) Ryan, 39, had already boarded Ethiopian Airlines flight 302 in Addis Ababa, headed to Nairobi.

Shortly after trying to send the message, a friend called Naoise Ryan and told her a plane had crashed, and Mick was believed to be on board. After waiting several excruciating hours, authorities confirmed that Nick was one of the 157 people killed when the Boeing 737 Max jetliner crashed shortly after takeoff. It was the second 737 Max to crash in almost identical fashion in less than five months time. The first, Lion Air flight 610, plunged into the Java Sea shortly after taking off from Jakarta's international airport, killing all 189 people on board.

Families of plane crash victims want DOJ to rescind Boeing's settlement agreement

Plane crash investigators determined that a new automated flight control system on the Max jets, called MCAS, played a significant role in causing both crashes.

Subsequent investigations found that Boeing and key company employees deceived the FAA about that flawed system when the plane was certified.

Last year, a U.S. Department of Justice probe resulted in Boeing being charged with criminal conspiracy to defraud the FAA, but the DOJ entered into a deferred prosecution agreement with the aircraft manufacturer to settle the charge without a criminal conviction.

Now, Ryan and some other relatives of those who died in the crashes want that agreement rescinded. But the Justice Department is sticking with the deal.

As part of the settlement, Boeing admitted to criminal misconduct for misleading regulators but did not plead guilty to the charge. The company also agreed to pay $2.5 billion dollars, including a fine of $244 million, and $500 million for a victims' compensation fund, while the vast majority of the money, $1.7 billion, went to airlines to compensate them for lost revenue during the nearly two year long grounding of 737 Max planes.

Notably, the agreement does not protect Boeing employees who may have engaged in misconduct from criminal prosecution, and in the agreement, Boeing blamed two its former test pilots. One of them, former Boeing pilot Mark Forkner, was indicted last fall.

If the company lives up to those and other terms of the deal, after three years, the criminal charge is dropped and Boeing and its top executives will be shielded from further criminal prosecution.

News of the deal in January of 2021 completely blindsided Naoise Ryan and the other families of those who died in the crashes.

"It was like a whole new wound had been inflicted on us," Ryan tells NPR. "It was a sweetheart deal. It wasn't justice. And by giving this immunity, basically, the decision makers have not been held to account."

Ryan and others say Boeing threw Forkner and the other former employee who has been implicated but not yet charged under the bus.

It was "a violation of federal law"

"Nobody could believe that two people went rogue on the company and said, 'We're going to do this and we're going to hide this,' says Ryan. "This came from the top down and it came from the top down for one reason corporate gain and corporate profits."

So she and other families filed a motion in federal district court in Texas, where the case is being heard, to rescind part of the deferred prosecution agreement. First and foremost, they say the DOJ did not inform them or consult with them prior to reaching the deal with Boeing. In fact, they say that the Justice Department told them there was no criminal investigation of the development and certification of the 737 Max.

"I think it's quite clear that the Justice Department violated the Crime Victims Rights Act and violated Internal Justice Department policy, which requires conferring with crime victims," says the families' attorney Paul Cassell. "That wasn't done here ... and that was a violation of federal law.

Attorney General Merrick Garland met virtually with several family members of the crash victims last month, and according to those who attended, he expressed sympathy for them. But while the families pressed him to reopen the deferred prosecution agreement, Garland took no position on the case.

DOJ says it was under no legal obligation to meet with crash victims' families before making a deal with Boeing

In their court filing, federal prosecutors apologized for not meeting with the crash victims' families before entering into the agreement with Boeing. But the Justice Department says that it was under no legal obligation to do so because the families are not "crime victims" under federal law; the FAA is.

"There was no doubt that Boeing had conspired to defraud the federal government when it deceived the FAA," federal prosecutors wrote. They also acknowledge that the flawed MCAS flight control system "may have played a role" in the plane crashes. "The government's investigation, however, did not produce evidence that it believed would allow it to prove beyond a reasonable doubt what factors had caused the crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302," the DOJ document states.

Essentially, the Justice Department is saying that without being able to prove beyond a reasonable doubt that the crashes were the direct result of a criminal act, the family members of those who died in the two crashes are not crime victims.

"So what the government is saying is that the only victims in this case were FAA bureaucrats," says attorney Cassell, who is a law professor at the University of Utah and is representing the families pro bono.

He says the government's position adds insult to injury, calling it "outrageous," and "morally unconscionable."

"Our reply is going to make very clear that Boeing's crimes of lying to the FAA directly led to the crashes of these two flights and killed 346 people," Cassell tells NPR. "Clearly, the criminality here extended far beyond the actions of just one or two individuals. This was corporate policy to put profits ahead of safety ... and so this should be a case in which the company is prosecuted criminally and the senior leadership who directed the criminality should also be prosecuted criminally."

The Justice Department would not comment further beyond it's detailed court filing.

A spokeswoman for Boeing declined to comment on the litigation as well.

Meanwhile, a federal judge this week dismissed two of the six fraud charges that had been filed against former Boeing technical pilot Mark Forkner, who was indicted last year for allegedly deceiving federal regulators about the MCAS flight control system on the Max.

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