Former Boeing Official Refuses To Comply In MAX Case Citing Self-Incrimination

On the sixth of September, 2019, a former Boeing official refused to provide documents to investigators when compelled by a Department of Justice (DOJ) subpoena. Mr. Mark Forkner, who previously worked at Boeing as Chief Technical Pilot on the MAX project, cited his Fifth-amendment right against self-incrimination, reports the Seattle Times.

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Boeing has been the target of various investigations concerning its 737 MAX. Photo: Clemens Vasters / Wikimedia Commons

Who is Mark Forkner?

Mr. Forkner is a life-long aviator. According to his LinkedIn page, he started his career in the United States Air force, later becoming an MD-80 and 737 First Officer with Alaska Airlines.

In 2008, Mr. Forkner returned to the Federal government through the FAA where he worked on Air Traffic Control.

In 2011, he returned to the private sector as Boeing’s 737 Chief Technical Pilot. A little less than seven years later, Mr. Forkner left Boeing for Southwest Airlines where he currently holds the position of First Officer.

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Mr. Forkner worked a Boeing from 2011 to 2018, later moving to Southwest Airlines. Photo: John Crowley / Wikimedia Commons

While at Boeing, Mr. Forkner extensively worked on the 737 MAX program. Per his LinkedIn page, he was “responsible for simultaneously leading the international certification of the operational and training programs for the 737MAX”.

According to an investigation by the New York Times, in 2016 Mr. Forkner reportedly asked the Federal Aviation Administration (FAA) if it would be okay to remove the MCAS from the pilot’s manual.

The request was eventually approved by the American regulators, under the assumption that the MCAS was a benign and rarely used system. An anonymous source told The Seattle Times that Mr. Forkner was frequently anxious about the deadlines and pressures faced in the MAX program.

Mr. Forkner’s attorney, David Gerger, told the New York Times that his client always “put safety first and was transparent in his work”.

Pleading the Fifth

When compelled to provide documents by a grand jury, Mr. Forkner initiated his Fifth-amendment right against self-incrimination.

Specifically, the Fifth-amendment of the U.S. Constitution protects natural persons from answering any questions, or to make any statements, which could incriminate said person in criminal or civil proceedings.

Traditionally, initiating the Fifth-amendment protects an individual from testifying against themselves. Photo: John Taggart / Wikimedia Commons

Traditionally, initiating the Fifth-amendment protects an individual from testifying against themselves. It does not, however, habitually afford an individual the right to refuse a writ compelling an individual to produce documents as evidence.

University of Washington law professor Jeffrey Feldman told The Seattle Times that while the Fifth-amendment “usually does not apply to being required to produce documents […] the mere act of producing the document” may be considered as an incriminating act.

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Mr. Forkner is one of many individuals questioned by the 737 MAX inquires. Photo: John Crowley / Wikimedia Commons

In truth, much is unknown about the circumstances which led Mr. Forkner to plead the fifth.

His decision to do so, however, may indicate a desire to obtain immunity from the information contained in the court-requested documents.

It should be noted though, that in U.S. criminal proceedings, juries are not permitted to draw an inference of guilt should an individual fail to testify.

Numerous investigations, lawsuits

In March 2019, the U.S. DOJ started a wide-ranging investigation into the way Boeing was regulated by the FAA following two fatal 737 MAX crashes in 12 months.

As part of the probe, DOJ prosecutors initiated secret grand jury proceedings and issued subpoenas, compelling concerned parties to testify or provide evidence before the investigation.

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The 737 MAX has been grounded across all jurisdictions since March 2019.Photo: Windmemories / Wikimedia Commons

The DOJ investigation into Boeing is only one of many federal inquests following the 737 MAX crashes.  Soon after the DOJ probe commenced, the Federal Bureau of Investigation (FBI) embarked on a criminal investigation concerning the 737MAX’s certification process.

In May, the US Securities and Exchange Commission’s embarked on an inquiry of its own.

Since U.S. investigations commenced, numerous parties have filed lawsuits against the American manufacturer, including pilots and leasing companies.

Simple Flying reached out to Boeing and Mr. Forkner’s attorney, David Gerger, for comment but did not receive a reply by the time of publication.