Why Boeing Pilot Forkner was Acquitted in the 737 Max Prosecution
The Department of Justice's prosecution of Mark Forkner, the only Boeing employee charged with a crime after the two fatal crashes of the 737 MAX, rested heavily on lengthy instant message exchanges with a Boeing colleague.
His documented remarks were by turns profane and insulting, and deeply shocking when made public. The most damning suggested that he knew about a design change Boeing made late in the program to the jet's new flight control system — a critical change that he was accused of hiding.
Yet his trial ended swiftly after less than four days. With just one defense witness testifying, the jury found Forkner not guilty less than two hours after the two sides rested their cases on Wednesday in Fort Worth, Texas.
Testimony for the prosecution by a senior Boeing engineer failed to convince the jury that Forkner had really known the details of the flight control change.
Even though others at Boeing for sure knew about the change and none flagged its significance to the Federal Aviation Administration or the airlines, the Forkner verdict likely marks the end of criminal charges against Boeing or its employees.
"Unfortunately, sometimes prosecutors try to find someone to blame," David Gerger, one of Forkner's defense attorneys, said in an interview Friday. "When there's a huge corporate and regulatory failure and they're blaming one mid-level person, you just have to wonder whether justice is really being done."
A scapegoat
In the aftermath of the two deadly Max crashes, Forkner's vodka-fueled and unsavory late-night text exchanges with his deputy Patrik Gustavsson had set him up as a villain in the public eye.
In those private exchanges, he mocked and insulted federal regulators, airline officials, suppliers and his own colleagues as idiots, clowns or monkeys.
He dismissed FAA engineers listening to a technical presentation as like "dogs watching TV."
Most egregiously, he recounted how he had pressured officials at Lion Air in Indonesia to drop a request that their pilots would all get full flight simulator training for the Max —and dismissed them as "idiots" for even asking. Tragically, the first Max crash was a Lion Air jet.
The prosecution pulled out comments that showed he felt intense pressure to cut costs for his bosses at Boeing and suggested that this motivated him to withhold information.
Yet experts within the aviation community have long seen Forkner as a fall guy.
One piece of evidence the defense prepared but didn't need to use was a Powerpoint presentation made by an FAA test pilot that said Forkner's indictment "is not only incorrect and misguided, it is detracting from the real lessons."
The point made in the presentation was that the Max crashes were the result of an engineering 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) — that was erroneously activated by a single faulty sensor.
Forkner was chief technical pilot for the Max during its development. Despite how that title sounds, he didn't fly the plane, only simulators. He wasn't a test pilot and he wasn't an engineer.
His first job was to make sure the simulators behaved just as the plane did. And he was responsible for recommending to the FAA what training pilots would need and what information should go in the flight manuals.
Former FAA safety engineer Richard Reed, who in the first year of the MAX's development worked on certification of the jet's electronic systems, said that despite Forkner's pressure on the airlines to reduce pilot training, he shouldn't be blamed for the crashes.
"Mark Forkner is certainly not innocent," Reed said Friday. "But, I agree with the jury in that he is not guilty."
"Forkner was just a small tooth on a small cog in a big sub-assembly of a bigger Boeing machine," he added. "A scapegoat."
What did he know?
Forkner was accused of deceiving the FAA and two of Boeing's U.S. airline customers and faced four counts of wire fraud, each carrying a maximum penalty of 20 years in prison.
The trial turned upon whether Forkner, during the final year of Max certification, had learned that Boeing engineers expanded the scope of MCAS, allowing it to activate at low speeds as well as high speeds — and that he deliberately concealed this change from the FAA and airlines such as Southwest and American who had ordered the Max.
In November 2016, Forkner in the message exchanges expressed wild surprise to Gustavsson about an incident in the simulator that seemed like an activation of MCAS at low speed.
"Oh shocker alerT!" [sic], he wrote. "So I basically lied to the regulators (unknowingly)."
After that exchange became public, Boeing asserted — as did Forkner's defense — that this was simply a glitch in the simulator and not an indication of how MCAS would actually operate.
The sole defense witness called in the trial backed Forkner up. Barry St. Germain, a top Boeing test pilot and engineer, testified that Forkner had indeed filed a report of a simulator malfunction on that occasion.
St. Germain said he followed up, tested it in the simulator, and had the glitch fixed. He further testified that in the flight condition that was being simulated, it would have been impossible for MCAS to activate. The quirk that surprised Forkner was a simulator error, he said.
The prosecution's key witness on this point was another Boeing employee, senior engineer David Loffing, who at the time was chief engineer for integrating all the MAX systems. He was promoted to vice president in 2020 and today is chief project engineer on the 777X program.
Loffing testified that sometime after Forkner got the surprise in the simulator he called Loffing as the senior engineer and asked him whether operation of MCAS had expanded to low speed flight. Loffing said he confirmed that this was the case.
And yet afterward, Forkner made no mention of this to the FAA.
Stacey Klein, Forkner's FAA counterpart, testified that he had never divulged this information but repeatedly stated that pilots would never encounter the condition where MCAS would activate and that it could be safely left out of the flight manuals.
"He lied," Klein testified.
Forkner's defense was that he didn't know then about the expansion of MCAS and learned of it only after the Lion Air crash. His attorneys sowed doubt about Loffing's testimony by pointing to a lack of any follow up to this phone call.
"There is no record whatsoever of such a call," said Gerger. "No email, no text, no memo. No sending Mark Forkner documents. Nothing."
Against Loffing's assertion, Gerger said he was able to marshal documentation.
"What was proved with actual hard facts and documents, is that Mr. Forkner had been sent an engineering document that never got updated with the MCAS expansion," Gerger said. And Boeing's engineering department "continued to send his group that same document with old information. The official documents showed no expansion."
With that doubt sown about deliberate fraud, the allegation that Forkner was motivated by pressure from management to cut Boeing and airline costs became irrelevant.
The potential effect of that management directive to Forkner's group to make sure pilot training was minimized was never explored in court.
And the bigger question of how the MCAS engineering flaws were missed was never part of the case.
Boeing on Friday declined to comment on the trial and to make Loffing available for interview.
The Department of Justice in a statement said, "While we are disappointed in the outcome, we respect the jury's verdict."
Forkner's acquittal seems 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 sole criminal consequence for Boeing is the fine imposed in that agreement: $244 million.
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