June 5, 2023

Fighting for Victims’ Rights in the U.S. v. Boeing Case

Paul Cassell, JD

I’m looking forward to the annual NCVLI Crime Victim Law Conference where I will be presenting with several family members who lost loved ones in the Boeing 737 MAX crashes: Lion Air Flight 610 and Ethiopian Air Flight 302. 

Those crashes were preventable – but Boeing lied to the FAA about the safety of the planes, which directly and proximately led to the crashes. 

And then, remarkably, the Justice Department cut a secret deal with Boeing, effectively immunizing it from criminal prosecution.  

Ultimately, a district court judge ruled that the secret deal violated the federal Crime Victims’ Rights Act. But later, the same judge ruled that, unfortunately, there was no way he could enforce the families’ right to confer about the deal before it was done. 

I’ve asked the Fifth Circuit to reveal the issue, in a brief that can be found here. The brief begins with this argument:

This case arises out of “the deadliest corporate crime in our nation’s history.” Op. 25. 

As the district court found, Boeing’s conspiracy to defraud the FAA directly and proximately killed 346 people—leaving behind 346 grieving families. 

Congress gave those families rights under the Crime Victims’ Rights Act. But the Government cared more about protecting Boeing’s reputation than the families’ rights. It misled the families as to whether a criminal investigation existed and then secretly cut a deferred prosecution deal without informing the families at all. 

Among the rights that Congress protected was a victim’s “reasonable right to confer” with prosecutors. 18 U.S.C. § 3771(a)(5). 

And in 2015, Congress reinforced this right, by mandating that a victim has “[t]he right to be informed in a timely manner of any . . . deferred prosecution agreement.” 18 U.S.C. § 3771(a)(9). And Congress has broadly protected crime victims’ rights “to be treated with fairness.” 18 U.S.C. § 3771(a)(8). 

The reason Congress established these rights is straightforward. As this Court explained in In re Dean, 527 F.3d 391 (5th Cir. 2008), “[i]n passing the Act, Congress made the policy decision—which we are bound to enforce—that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached.” Id. at 395 (emphasis added). 

In this case, the victims’ families were denied these promised rights—as the district court specifically found. Appx. 465. But then, the district did nothing. 

In doing nothing, the district court failed to discharge its CVRA obligation that it “shall ensure that . . . crime victim[s] are afforded the rights described in [the CVRA].” 18 U.S.C. § 3771(b)(1) (emphasis added). 

Rather than follow the CVRA’s plain language requiring it to “ensure” that the families were afforded their rights, the district court held that meaningless, post hoc “listening sessions” could substitute for the meaningful, pre-charging conferral that Congress mandated. Op. 20. 

The district court abdicated its CVRA responsibility to “ensure” that the victims’ families were afforded their rights. In the CVRA, Congress promised the families that they would have the opportunity to take part in shaping the scope of Boeing’s DPA by conferring with prosecutors before they finalized the DPA. 

This Court should grant the families’ petition and enforce Congress’s command.

Several of the family members that I am proud to represent will be attending the NCVLI conference. I am looking forward to a discussion about how crime victims’ rights enforcement is important to families like theirs.

Brief can be viewed here: https://reason.com/wp-content/uploads/2023/02/FILED-CM-ECF-VICTIM-PETITION.pdf 

Paul G. Cassell is a former judge and expert on crime victims’ rights, police interrogation, and other criminal and civil justice issues. He is also the Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at S.J. Quinney College of Law at the University of Utah.

Twitter: @pgcassell