Lawyers representing two Long Island pilots detained in Brazil since a Sept. 29 midair collision said air traffic controllers directed the two to fly at the altitude at which the crash occurred, and contended their clients should not be faulted for the fatal accident.
The lawyers for pilots Joseph Lepore, of Bay Shore, and Jan Paladino, of Westhampton Beach, said the two men had been cleared to fly at 37,000 feet for the entire way from the southern city of SÃ£o Paulo to Manaus in Brazil's northwest.
Earlier this month, Lucio da Silva, the director of the control center that was responsible for guiding the two pilots, told Newsday that 37,000 feet is generally considered an improper altitude for aircraft flying west along controlled routes like the one the pilots flew. He said international protocol reserves odd-numbered altitudes for eastbound traffic in such lanes.
But Miami attorney Robert Torricella, who is representing the pilots, said aviation rules require pilots to follow the instructions of controllers, even when those instructions conflict with a filed flight plan. He said the pilots can't be blamed for the crash that killed 154 people.
Torricella said controllers told them to fly at 37,000 feet as they left SÃ£o Paulo, that the pilots were never told to deviate from that altitude, and that they flew on autopilot from near SÃ£o Paulo until the crash.
"At departure, Joe and Jan received a clearance to Manaus at flight level 370," said Torricella, referring to the altitude of 37,000. "Absent contrary instructions from air traffic control, they were not supposed to descend or climb anywhere along their route."
Theo Diaz, a lawyer from SÃ£o Paulo also representing the pilots, said Brazilian law does not permit authorities to detain people unless they face charges of willfully committing a serious crime.
Diaz cited a 1997 treaty that requires U.S. authorities to assist the investigation by taking depositions and collecting documents on behalf of Brazilian investigators, should the pilots return to the United States.
"From the outset, we have maintained that seizing their passports was not legal," Diaz said. "That conclusion is more apparent now that the available facts are showing that Joe and Jan did not engage in any intentional misconduct."
Lepore and Paladino were ferrying a newly purchased Embraer Legacy corporate jet back to Long Island when it collided with a Boeing 727 over the Amazon basin about 500 miles west of the capital, Brasilia.
Paladino and Lepore were questioned by Brazilian authorities shortly after the accident, but have spent almost all their time since then in seclusion at a beachfront hotel in Rio de Janeiro.
"Joe and Jan are trying to do the best they can under very difficult and emotional circumstances," Torricella said. "They miss being home."
After the crash, Brazilian authorities said it appeared as if the pilots had turned off their transponder, an instrument that informs air traffic controllers and nearby planes of an aircraft's speed, bearing and altitude.
Torricella said the transponder appears to have failed, but that his clients were unaware it was not working. Investigators haven't released any information about evidence collected.
Brazilian authorities are investigating why the Legacy was flying at the same altitude as the Boeing, which was flying in the opposite direction.
Da Silva said he couldn't comment on whether the Brasilia controllers told the Legacy to change its altitude.
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A pilot's statements suggest that Brazilian air traffic controllers set the two planes on a collision course.
The pilots must agree to return to Brazil for any further inquiry and judicial action.