Eye of Experience #20:Mock Trial

WhileI was at EAA AirVenture '99 at Oshkosh this year, I ran into a friend of minenamed W. Roger Mullins, better known as Judge Mullins. For those of you who maynot remember or know, he's the Administrative Law Judge (ALJ) for the NationalTransportation Safety Board (NTSB) who restored Bob Hoover's medical certificatewhen the FAA first took it away. The board overruled him and the battle wasjoined, but that's another story. While I was standing and chatting with Roger, whoshould come along but two more mutual friends of Roger and mine, John Yodice andhis lovely daughter Kathy. Both Judge Mullins and John Yodice made valuablecontributions to my latest book, VIOLATION!

Turns out all three were about to go into one of the Forum Tents and conducta mock trial, so what choice did I have but to enter the tent and watch theproceedings? The case was based on an actual trial resulting from an FAAenforcement action. All the participants had granted permission to use theircase 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 themock trial. The real trial lasted two full days, but the participants in themock trial managed to get all the salient facts in and the judge rendered hisdecision 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 veryinteresting. There were several unique features in the mock trial. For example,John Yodice, who is one of the country's foremost lawyers representingairpersons charged with violating the regulations, played the part of an FAAattorney prosecuting the two airmen charged here. Kathy Yodice, anotherprominent defense attorney in her father's office in Washington, took the roleof the FAA Inspector who investigated the matter and initially brought thecharges. The only two people who played their actual real life roles were Judge Mullins and the defense attorney, who represented thepilots, although he was not the lawyer in the actual case, nor was Mullins theactual judge.

The characters in this little drama were: Moderator, Sandy McDonough (thedefense attorney who tried the actual case); FAA Inspector Gary Skycop (playedby Kathy Yodice); FAA Attorney (played by John Yodice); civilian complainant SamAdams (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 isbased:

Just The Facts, Please

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

See You In Court!

The FAA Attorney, John Yodice, made an opening statement in which he firstattempted to dispose of the immunity claim of the pilots by virtue of havingfiled NASA reports. He pointed out that the timely filing of ASRS reports grantsimmunity 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 wouldprove 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 theFAA put in its case.

John Yodice, still representing the FAA, called Mr. Sam Adams as his firstwitness. 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 andits location on the charts. John Yodice then attempted to qualify Mr. Adams asan expert at judging distances by establishing that he is a building contractorand used to estimating distance in connection with his profession. Mr. Adamstestified that the airplane flew over his home at a height no greater than 160feet.

Attorney Don Quixote, representing both pilots, cross-examined Mr. Adams. Inthe foreground of the picture of the Adams house, just behind the house is astand of very tall trees, and in the background, some distance beyond the treesis a tall tower. Quixote asked the witness over how long a period of time heobserved the airplane and its relationship to the trees and the tower when hefirst 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 SafetyInspector for the FAA, and to his experience with the Swearingen Metro IIIaircraft, most of which knowledge came from reading the aircraft manual. Hedescribed his investigation of Mr. Adams' allegations, his two phoneconversations with Adams and his two personal visits with him. He also describedhis examination of the scene, the roof of the Adams home, the location of theladder 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 findanother witness to the incident. One of the neighbors thought she might haveheard 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 claimedto observe the airplane it could not have remained in the air in the event of anengine loss. This contributed to the charge of reckless and careless and madethe flight potentially hazardous to persons and property on the surface.

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

The Defense

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

The defense expert, Aaron Stead, was then called and properly qualified as anexpert. He testified that under the conditions of weight, etc. that existed onthe day of the flight the airplane was quite capable of maintaining altitude andeven climbing on one engine in the event of a catastrophic engine loss, thuscountering the FAA claim that the flight endangered persons or property on thesurface. He further testified using the topographic map and the location of theradar antenna that the reply signal would likely be unreliable at the minimumlegal altitude. He also pointed out that since the aircraft is a particularlyloud and noisy machine it was likely that Mr. Adams heard rather than saw it asit flew over, and because of the noise he assumed that it was at an extremelylow altitude.

The Outcome

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