Prosecutorial discretion, again

Here we go again, another episode in the long running soap opera concerning Boeing's 737-MAX. To recap, Boeing put larger engines on a new model of their 737, and in order to clear the ground, they had to tilt the engines a little. That changed the flight characteristics a little and they had to change the flight computers a little. So far so good. But then Boeing did something really really stupid: they self-certified to the FAA that the plane was so similar to previous versions that pilots could transfer with minimal retraining.

They lied. Two planes crashed and killed 346 people. Boeing admitted to the FAA they lied. The FAA slapped their wrists. The victims' families objected, courts ruled for the victims, Boeing and the FAA tried other tricks, the victims objected again, the courts ruled for the victims again. I don't know how many times this has gone back and forth.

Here's the latest. The FAA promised Boeing they would drop the case. But they can't do that without the court's approval. Remember, this article is by the lawyer for the victims, so he's not exactly neutral and objective here; but he's also working for free. There are some good lawyer comments too, shedding more light on how ritualistic the US judicial system is. But out of everything else I've read about this mess, nobody has taken Boeing's side, even if they think Boeing should get away with this nonsense. Everyone knows Boeing stepped in deep doo-doo, and it's just a question of who else gets splattered as they try to shake it off.

In yesterday's filing, my lead argument opposing the pending motion to dismiss the Boeing charge concerns an unprecedented maneuver by the Justice Department. Before filing its motion to dismiss with the Court, the Justice Department negotiated with Boeing a non-prosecution agreement (NPA). The parties included in their NPA a provision in which the Department agreed not to further prosecute Boeing. This provision took effect several weeks ago, even before Judge O'Connor has had an opportunity to rule on the currently pending motion to dismiss.

In other words, the FAA has already promised something which only the court can actually promise. But on the other hand, how can anyone force a reluctant prosecutor to actually prosecute faithfully? Can't be done! I don't know what the alternatives are. Can the court hand the prosecution over to a private party? I mean .... I mean, this is weird. Governments unilaterally reserve to themselves the right to prosecute criminal matters, and courts have recognized prosecutorial discretion as a real thing for ages; prosecutors alone get to decide which burglaries, muggings, and so on get prosecuted. In the high profile arena, courts ruled nobody could force the Obama administration to prosecute millions of illegal immigrants whose families included young children (who were also illegal immigrants) because that was a prosecutor's choice. When someone in the Trump administration illegally deported an illegal immigrant in violation of a court order, the courts couldn't order Trump to prosecute whoever basically kidnapped the illegal immigrant.

Is this 737-MAX fiasco is a prosecution already? If so, case federal rules say only the court can let a prosecutor dismiss charges, which makes one wonder how real a prosecution is when the prosecutor has already agreed with the defendant to stop prosecuting. Or is this some kind of preliminary hearing, and no matter what happens here, the prosecutor doesn't have to prosecute because he's got that court-sanctified discretion?

Wotta mess!

Chartertopia avoids this whole procedural ritualistic mess by starting with victim prosecution. Criminals can't get a friend to pose as a victim and start a sham prosecution which they intentionally lose, or win with a minimal $1 verdict, because charter redress is about entire disputes. All the real victims can join in the prosecution. If the sham victim colludes with the criminal to close the case before the real victims realize what's happened, those real victims just reopen the case -- the appearance of new victims unresolves the case, so to speak; the dispute was not resolved as the charter demands.

The really dangerous part of collusion between a sham victim and real criminal is the perjury -- the issue at stake is everything (within reason) the real victims claim, because that is what the criminal was trying to avoid. Furthermore, the sham victim and the criminal would each, separately, owe that issue at stake, because each, individually, committed that perjury. And that's before the real victims even prove their case! If they want to go ahead and prove it, the criminal also owes whatever he can negotiate with the real victims. But if he negotiates less, the perjury issue at stake doesn't decrease, since it was the full complaint he was dodging.

Suppose, for instance, the 346 victims in this case claim a total restitution of $1 billion. That's $3 million apiece, which seems at least in the ballpark. The FAA is the sham victim here, I guess, although mapping this to Chartertopia is somewhat of a lost cause. So the FAA and Boeing would each owe that $1 billion before the real trial even started. If the victims decided to press ahead with the trial against Boeing (but not the FAA, their part is done), Boeing be on the hook for more restitution. They would have lost so much credibility that the victims could easily convince the public Boeing owes that full $1 billion, but possibly more, say twice as much, just for being so callous and lying so deliberately about the pilot retraining and the unchanged flight control system. The final tally would be Boeing owing $3 billion and the FAA owing $1 billion, plus all related redress costs. And interest; the two crashes were in 2018 and 2019.

So in Chartertopia, Boeing would know it had no friends in high government places protecting them. They might be stupid enough to make the same self-certification lie to some FAA-equivalent auditor, but once caught, they and the auditor them would know all about perjury and know better than to pull some tom-fool stunt like this.