Lawyer Points Finger at Brazilian Air Traffic Controllers

The two American pilots involved in Brazil's deadliest air crash said they were flying at their authorized altitude when their executive jet collided with a Brazilian airliner, according to the men's attorney.

Miami-based attorney Robert A. Torricella Jr. said Brazilian air traffic controllers cleared the pilots, Joseph Lepore and Jan Paladino, to fly at 37,000 feet on Sept. 29 from the southeastern Brazilian city of Sao Jose dos Campos to the Amazonian city of Manaus.

Torricella's comments, made in an interview and subsequent e-mails to McClatchy Newspapers, was the most detailed account to date of the pilots' version of the crash, which killed 154 people after the executive jet sliced through the right wing and tail of a Boeing 737 flying in the opposite direction, sending it plunging into the jungle below.

Brazilian officials have accused the New York-based pilots of diverting from their original flight plan, which required them to descend from 37,000 feet to 36,000 feet at the capital of Brasilia and then climb to 38,000 feet about 180 miles southeast from where the collision occurred.

Torricella said the air traffic controllers' clearance nullified the flight plan. U.S. air experts also said air traffic clearance trumps flight plans.

"At departure, Joe and Jan received a clearance to Manaus at flight level 370," Torricella said in an e-mail. "At that stage, the clearance superseded what was in the printed flight plan and, absent contrary instructions from air traffic control, they were not supposed to descend or climb anywhere along their route."

Renato Drummond, a press secretary for the Division of Investigation and Prevention of Air Accidents, which the Brazilian Air Force runs, said he didn't know whether the U.S. pilots had received a clearance that differed from their flight plan.

"There was a flight plan that was registered in Sao Jose dos Campos, and they were obligated to follow it," Drummond said. "I don't know anything about what their lawyer is saying."

Torricella's statements suggest that Brazilian air traffic controllers set the two planes on a collision course. Officials have said that the Boeing, operated by the local airline Gol Linhas Aereas Inteligentes, was cruising at its authorized altitude of 37,000 feet when it hit the Legacy jet, which had just been delivered by Brazilian manufacturer Embraer.

U.S. and international aviation experts have expressed concern that Brazilian authorities have focused their investigation on the pilots and not on possible mistakes committed by air traffic controllers. Brazil is one of the few countries where the military runs both air traffic control and air accident investigations.

Brazilian Defense Minister Waldir Pires, who's overseeing the investigation, has insisted that the controllers were free of blame. He's also asked whether the pilots purposefully turned off the Legacy's transponder, a device that would have announced the jet's altitude to controllers. Torricella denied the charge.

Since the accident, air traffic controllers have complained of their workload, and last Friday they began refusing to monitor more than the number of planes recommended by international regulations. They've also implemented other safety measures. The action has snarled flight traffic all over the country.

International air experts say Brazilian controllers, who'd lost radio contact with the Legacy, could have avoided the accident by moving the Boeing out of the Legacy's path if they believed that collision was possible.

"The correct procedure in this situation (of lost radio contact) is for controllers to free a path for the aircraft and get other airplanes out of the way," said Cristoph Gilgen, a Swiss air traffic controller who led an international delegation to Brazil to provide psychological counseling and operational support to the controllers involved.

Torricella said the U.S. pilots switched the jet to auto pilot early in the flight and kept it that way up until the collision. Before reaching Brasilia, he said, the pilots flew at 37,000 feet, which controllers were aware of, and pressed the "IDENT" button more than once on the jet's transponder, which verified it was working.

"Joe and Jan flew the entire flight under the belief that the transponder was operating," Torricella wrote.

Some time after Brasilia, the pilots tried to re-establish radio contact with air traffic controllers by following "customary procedures," Torricella said. The pilots briefly heard controllers ask them to switch frequencies but lost the signal before recording the new frequency numbers, he said.

The pilots were still trying to re-establish radio contact when the collision occurred, he said.

Days after the accident, a Brazilian judge seized the pilots' passports to keep them in the country during the investigation, and they've been confined since to a hotel in Rio de Janeiro. Representatives of the jet's U.S. owners, ExcelAire, have asked that the pilots be allowed to leave the country.

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