Eye of Experience #20:<br>Mock Trial

While I was at EAA AirVenture '99 at Oshkosh this year, I ran into a friend of mine named W. Roger Mullins, better known as Judge Mullins. For those of you who may not remember or know, he's the Administrative Law Judge (ALJ) for the National Transportation Safety Board (NTSB) who restored Bob Hoover's medical certificate when the FAA first took it away. The board overruled him and the battle was joined, but that's another story. While I was standing and chatting with Roger, who should come along but two more mutual friends of Roger and mine, John Yodice and his lovely daughter Kathy. Both Judge Mullins and John Yodice made valuable contributions to my latest book, VIOLATION!

Turns out all three were about to go into one of the Forum Tents and conduct a mock trial, so what choice did I have but to enter the tent and watch the proceedings? The case was based on an actual trial resulting from an FAA enforcement action. All the participants had granted permission to use their case for demonstration purposes in the form of a mock trial. No one present (except the attorney who represented the two pilots charged with the violations) knew the outcome of the actual case and she was not an active participant in the mock trial. The real trial lasted two full days, but the participants in the mock trial managed to get all the salient facts in and the judge rendered his decision at the mock trial in two and one half-hours.

Since my latest book, VIOLATION!, dealing with the process and the interpretation of the regulations by the ALJs, the NTSB, and the courts, was released at Oshkosh, I found the presentation very interesting. There were several unique features in the mock trial. For example, John Yodice, who is one of the country's foremost lawyers representing airpersons charged with violating the regulations, played the part of an FAA attorney prosecuting the two airmen charged here. Kathy Yodice, another prominent defense attorney in her father's office in Washington, took the role of the FAA Inspector who investigated the matter and initially brought the charges. The only two people who played their actual real life roles were Judge Mullins and the defense attorney, who represented the pilots, although he was not the lawyer in the actual case, nor was Mullins the actual judge.

The characters in this little drama were: Moderator, Sandy McDonough (the defense attorney who tried the actual case); FAA Inspector Gary Skycop (played by Kathy Yodice); FAA Attorney (played by John Yodice); civilian complainant Sam Adams (played by Art Wasserman); the two pilots, Jeff Trueblood and Davis S. Perfect (played by Jim Cooling and Susan Hofer); the pilot's defense attorney, Don Quixote (played by Pat Phillips); expert witness for the pilots Aaron Stead (played by Harry Riggs), and finally The Hon. William R. (Roger) Mullins, Administrative Law Judge, National Transportation Safety Board himself.

Two pilots received identical Orders of Suspension after an informal hearing (meeting) with an attorney from the regional office of the FAA.

This is the actual order issued in the real case upon which this exercise is based:

U.S. Department
of Transportation
Federal Aviation
Administration
New England
Region
12 New England Executive Park
Burlington, Massachusetts 01803
Tel (617) 238-7046 FAX
(617) 238-7055
94NE050004

April 25, 1995

CERTIFIED MAIL - RETURN RECEIPT REQUESTED

ORDER OF SUSPENSION

On April 7, 1994, you were advised by mail through a Notice of Proposed Certificate Action of the reasons why we propose to suspend your Airline Transport Pilot Certificate No. XXXXXXXX, with airplane multiengine land, airplane single engine land, airplane single engine sea, and glider aero tow ratings, and Flight Instructor Certificate No. XXXXXXXX, with airplane single and multiengine and instrument airplane ratings. After consideration of all the evidence presently a part of this proceeding, including an informal conference held on September 7, 1994, and March 1, 1995, it has been determined that you are in violation of the Federal Aviation Regulations hereinafter specified by reason of the following circumstances:

1. You are the holder of Airline Transport Pilot Certificate No. XXXXXXXX, with airplane multiengine land, airplane single engine land, airplane single engine sea, and glider aero tow ratings, and Flight Instructor Certificate No. XXXXXXXX, with airplane single and multiengine and instrument airplane ratings. 2. On or about October 26, 1993, you were pilot in command of a Swearingen SA-227 Metroliner aircraft, civil registration NXXXXX, owned by another, on XXXXX Flight #XXXX from Bangor, Maine to Norfolk, Virginia. 3. During said flight, when not necessary for takeoff or landing, you operated said aircraft in the area of Prospect, Maine at an altitude which would not have allowed an emergency landing to be made without undue hazard to persons or property on the surface in the event of a power unit failure. 4. During said flight, in the area of Prospect, Maine, you operated said aircraft at an altitude of less than 500 feet above the surface and less than 500 feet from an individual and/or structure. 5 . Your operation of an aircraft in the manner and under the circumstances described above was careless and/or reckless so as to endanger the life and property of another.

By reason of the foregoing facts and circumstances, you violated the following Federal Aviation Regulations:

(a) Section 91.119(a), in that, when not necessary for takeoff or landing, you operated an aircraft at an altitude which did not allow an emergency landing to be made without undue hazard to persons or property on the surface in the event of a power unit failure. (b) Section 91.119(c), in that you operated an aircraft at an altitude of less than 500 feet above the surface and less than 500 feet from a person and/or structure. (c) Section 91.13(a), in that you operated an aircraft in a careless and/or reckless manner so as to endanger the life or property of another.

By reason of the foregoing, the Administrator has determined that safety in air commerce or air transportation and the public interest require the suspension of your Airline Transport Pilot Certificate No. XXXXXXXX, and Flight Instructor Certificate No. XXXXXXXX. NOW, THEREFORE, IT IS ORDERED, pursuant to the authority vested in the Administrator by Section 44709 of Title 49 of the United States Code (originally enacted as section 609(a) of the Federal Aviation Act of 1958) that:

(1) Any pilot certificate now held by you, including Airline Transport Pilot Certificate No. XXXXXXXX, and Flight Instructor Certificate No. XXXXXXXX, be and hereby are suspended for a period of one hundred eighty (180) days. (2) Said suspensions shall be effective on May 15, 1995, and shall continue in effect until said certificates have been suspended for a period of one hundred eighty (180) days. (3) You shall surrender said certificates on or before the effective date of this Order, by mail or delivery to
Assistant Chief Counsel, New England Region Federal Aviation
Administration, ANE-7
12 New England Executive Park, Room 401 Burlington, Massachusetts 01803
(4) If you fail to surrender said certificates on or before the effective date of this Order, said suspensions shall become effective as of that date and shall continue in effect until
one hundred eighty (180) days subsequent to your actual surrender thereof. (5) If you surrender said certificates prior to the effective date of this order, the periods of suspension shall commence upon such surrender and continue in effect for a period of one hundred eighty (180) days. (6) If you fail to surrender said certificates pursuant to the terms of this Order, you may be subject to civil penalties of up to $1,000 per day.

AMY L. CORBETT Assistant Chief
Counsel BY:
MELISSA M. DER
Attorney, ANE-7

APPEAL

You may appeal this Order by filing an original and four copies of a Notice of Appeal with the National Transportation Safety Board, Office of Judges, Room 5531, 490 L'Enfant Plaza East, S.W., Washington, DC 20594, telephone (202) 382-0650, FAX (202) 382-0658. Any Notice of Appeal must be filed within twenty (20) days of the day this order was served. You must also mail a copy of your Notice of Appeal to this office. Such an appeal will stay the effectiveness of this Order. You are hereby advised that if you appeal, a copy of this Order will be filed with the National Transportation Safety Board and will be considered the Administrator's Complaint.

CC: Sandra M. McDonough, Esq.

The factual situation is as follows: Two pilots left Bangor, Maine on a ferry flight to reposition their company's Swearingen Metro III to Norfolk, Va. It was a beautiful day and they opted to go VFR, following the Penobscot River to the Atlantic Ocean, where they climbed to cruise altitude. Mr. Adams called the FAA some time after the Metro flew by, saying the plane was no more than 160 feet above his house, where he was on a ladder replacing siding at the time the plane flew by. FAA Inspector Skycop investigated Mr. Adams' complaint and the FAA charged the two pilots with flying too low, careless and reckless operation, and endangering the public if an engine failed. The pilots claimed to have timely filed ASRS (Aviation Safety Reporting System Reports — so-called NASA Reports). The FAA issued an order suspending both pilots' ATP certificates. Attorney Quixote appealed on behalf of the pilots and the matter went to trial in the Mock Trial demonstration before ALJ Mullins.

The FAA Attorney, John Yodice, made an opening statement in which he first attempted to dispose of the immunity claim of the pilots by virtue of having filed NASA reports. He pointed out that the timely filing of ASRS reports grants immunity only in cases where the violation is inadvertent and not deliberate, and in this case the actions of the pilots was deliberate. He then said he would prove that the Metro was below the legal minimum by the introduction of chart, photo and expert testimony evidence.

Attorney Quixote said he would reserve his opening statement until after the FAA put in its case.

John Yodice, still representing the FAA, called Mr. Sam Adams as his first witness. A sectional chart, a topographic map of the area, and two photos of Mr. Adams' house were introduced in evidence and Mr. Adams identified his home and its location on the charts. John Yodice then attempted to qualify Mr. Adams as an expert at judging distances by establishing that he is a building contractor and used to estimating distance in connection with his profession. Mr. Adams testified that the airplane flew over his home at a height no greater than 160 feet.

Attorney Don Quixote, representing both pilots, cross-examined Mr. Adams. In the foreground of the picture of the Adams house, just behind the house is a stand of very tall trees, and in the background, some distance beyond the trees is a tall tower. Quixote asked the witness over how long a period of time he observed the airplane and its relationship to the trees and the tower when he first saw it. Adams was uncertain just where it was when he first observed it, and he said it was going so fast that he only saw it for a couple of seconds.

Adams was then dismissed and John Yodice called Gary Skycop to the stand. Skycop testified as to the length of time he had worked as an Aviation Safety Inspector for the FAA, and to his experience with the Swearingen Metro III aircraft, most of which knowledge came from reading the aircraft manual. He described his investigation of Mr. Adams' allegations, his two phone conversations with Adams and his two personal visits with him. He also described his examination of the scene, the roof of the Adams home, the location of the ladder on which Mr. Adams stood when he claimed to see the low-flying airplane. He testified that he had interviewed Adams' neighbors in an effort to find another witness to the incident. One of the neighbors thought she might have heard the airplane go by, but nobody claimed to have seen it except Adams.

Skycop testified that in his opinion at the altitude that Mr. Adams claimed to observe the airplane it could not have remained in the air in the event of an engine loss. This contributed to the charge of reckless and careless and made the flight potentially hazardous to persons and property on the surface.

On cross-examination, Quixote got Skycop to acknowledge that the Metro III is a particularly noisy airplane, and that his personal knowledge of that specific make and model aircraft is very limited. He admitted that his "expert" opinion was based on a reading of the airplane manual. Skycop also testified as to the location of the radar antenna, and he located the site on the topographic map and the aeronautical chart. This concluded the FAA's case, and now it was the turn of the defense to put in its evidence.

Both pilots testified that at no time during the flight did they operate at an altitude below that specified in the regulations. They maintained that the flight was in full compliance with all the regulations at all times.

The defense expert, Aaron Stead, was then called and properly qualified as an expert. He testified that under the conditions of weight, etc. that existed on the day of the flight the airplane was quite capable of maintaining altitude and even climbing on one engine in the event of a catastrophic engine loss, thus countering the FAA claim that the flight endangered persons or property on the surface. He further testified using the topographic map and the location of the radar antenna that the reply signal would likely be unreliable at the minimum legal altitude. He also pointed out that since the aircraft is a particularly loud and noisy machine it was likely that Mr. Adams heard rather than saw it as it flew over, and because of the noise he assumed that it was at an extremely low altitude.

Both sides then summarized what they each thought they had proved, and the judge rendered his decision. He decided in favor of the FAA and affirmed the penalty imposed by the agency! He chose to rely on the testimony of Skycop rather than that of Aaron Stead. This outcome, although typical of NTSB Administrative Law Judges' decisions, is particularly unusual in that the outcome of the actual case on which this Mock Trial was based had exactly the opposite outcome. In real life, the good guys really won.

Eye of Experience #20:Mock Trial

Eye of Experience #20:
Mock Trial