How the government failed in a criminal case against former Boeing chief technical pilot Mark Forkner
The Justice Department’s case against Mark Forkner, the only Boeing employee charged with a crime after the two fatal 737 Max crashes, was largely based on lengthy instant message exchanges with a Boeing colleague.
His documented remarks were by turns profane and insulting, and deeply shocking when made public. Most damning suggested he was aware of a design change Boeing made late in the program to the plane’s new flight control system – a critical change he was accused of hiding.
Yet his trial in Fort Worth ended quickly last week after less than four days. With only one defense witness testifying, the jury found Forkner not guilty less than two hours after the two sides closed their case.
Prosecution testimony from a senior Boeing engineer failed to convince the jury that Forkner really knew the details of the flight control change.
While others at Boeing were certainly aware of the change and none pointed to its significance to the Federal Aviation Administration or the airlines, Forkner’s verdict likely marks the end of criminal proceedings against Boeing or his employees.
“Unfortunately, prosecutors sometimes try to find someone to blame,” David Gerger, one of Forkner’s defense attorneys, said in an interview. “When there’s a huge corporate and regulatory failure and they blame someone mid-level, you just have to wonder if justice is really being served.”
In the wake of Max’s two fatal accidents, Forkner’s vodka-fueled and disreputable late-night text exchanges with his deputy Patrik Gustavsson had cast him as a villain in the public eye.
In these private exchanges, he mocked and insulted federal regulators, airline officials, suppliers and his own colleagues by calling them idiots, clowns or monkeys.
He called FAA engineers listening to a technical presentation like “dogs watching television.”
More egregiously, he recounted how he pressured Lion Air officials in Indonesia to drop a request that their pilots all receive full flight simulator training for the Max and turned them down. like “idiots” for even asking. Tragically, Max’s first crash was a Lion Air jet.
The prosecution pulled out comments that showed he felt intense pressure to cut costs from his bosses at Boeing and suggested that this motivated him to withhold information.
Yet experts in the aviation community have long viewed Forkner as a scapegoat.
One piece of evidence the defense prepared but did not need to use was a Powerpoint presentation given by an FAA test pilot who said Forkner’s indictment “is not only incorrect and erroneous, it diverts the true lessons”.
The point made in the presentation was that Max’s crashes were the result of a technical failure for which Forkner was not responsible.
The main cause of the crashes was the poor design of the Max’s new flight control software – called the Maneuvering Characteristics Augmentation System (MCAS) – which was mistakenly activated by a single faulty sensor.
Forkner was the chief technical pilot of the Max during its development. Despite how that title sounds, he didn’t fly the plane, only simulators. He was not a test pilot and he was not an engineer.
His first job was to make sure the simulators behaved exactly like the plane. And he was responsible for recommending to the FAA what training pilots would need and what information should be in flight manuals.
Former FAA safety engineer Richard Reed, who during the Max’s first year of development worked on certifying the jet’s electronic systems, said that despite Forkner’s pressure on airlines to reduce pilot training, he shouldn’t be blamed for the crashes.
“Mark Forkner is certainly not innocent,” Reed said. “But, I agree with the jury that he is not guilty.”
“Forkner was just a small cog on a small cog in a big subset of a bigger Boeing machine,” he added. “A scapegoat.”
What did he know?
Forkner was charged with deceiving the FAA and two of Boeing’s US airline customers and faced four counts of wire fraud, each carrying a maximum sentence of 20 years in prison.
The lawsuit focused on whether Forkner, during the final year of Max certification, learned that Boeing engineers had expanded the range of MCAS, allowing it to activate at low speeds as well as high speeds. – and that he deliberately hid this change from the FAA and airlines such as Southwest and American who had ordered the Max.
In November 2016, Forkner in Message Exchanges expressed wild surprise to Gustavsson over an incident in the simulator that looked like a low-speed MCAS activation.
“Oh shock alert!” he wrote. “So I basically lied to regulators (unknowingly).”
After this exchange became public, Boeing claimed – as did Forkner’s defense – that it was simply a glitch in the simulator and not an indication of how MCAS actually worked.
The only defense witness called at trial supported Forkner. Barry St. Germain, one of Boeing’s top test pilots and engineer, said Forkner did file a simulator malfunction report on that occasion.
St. Germain said it tracked, tested in the simulator, and fixed the issue. He further testified that under the simulated flight conditions, it would have been impossible for MCAS to activate. The oddity that surprised Forkner was a simulator error, he said.
The key prosecution witness on this point was another Boeing employee, senior engineer David Loffing, who at the time was chief engineer for the integration of all Max systems. He was promoted to vice president in 2020 and is now lead project engineer on the 777X program.
Loffing testified that sometime after Forkner got the surprise in the simulator, he called Loffing as the lead engineer and asked if the operation of MCAS had extended to low-speed flight. Loffing said he confirmed that was the case.
And yet, subsequently, Forkner made no mention of it to the FAA.
Stacey Klein, Forkner’s counterpart to the FAA, testified that he never disclosed this information, but repeatedly stated that pilots would never encounter the condition where MCAS would activate and that he could be safely omitted from flight manuals.
“He lied,” Klein testified.
Forkner’s defense was that he was unaware of the MCAS expansion and only learned of it after the Lion Air crash. His lawyers cast doubt on Loffing’s testimony by pointing out the lack of follow-up to this phone call.
“There is no record of such a call,” Gerger said. “No email, no text, no memo. No sending Mark Forkner documents. Nothing.”
Against Loffing’s claim, Gerger said he was able to gather the documentation.
“What was proven with actual facts and documents was that Mr. Forkner had received an engineering document that was never updated with the expansion of MCAS,” Gerger said. And Boeing’s engineering department “continued to send its group this same document with old information. Official documents showed no expansion.
With this doubt sown about deliberate fraud, the allegation that Forkner was motivated by management pressure to cut Boeing and airline costs became moot.
The potential effect of this management directive on Forkner’s group to ensure pilot training was minimized was never explored in court.
And the bigger question of how MCAS’ engineering flaws were missed was never part of the case.
Boeing declined to comment on the lawsuit. The Justice Department said in a statement, “While we are disappointed with the outcome, we respect the jury’s verdict.”
Forkner’s acquittal appears to mark the end of legal risk for Boeing and its employees.
In January 2021, the Justice Department agreed to a deferred prosecution agreement with the company that explicitly exonerated Boeing’s senior management.
The only penal consequence for Boeing is the fine imposed in this agreement: 244 million dollars.