Ex-Boeing Pilot Charged in Probe of 737 MAX Crashes Is Scapegoat, Lawyer Says

“This tragedy deserves a search for the truth—not a search for a scapegoat,” said David Gerger, Mr. Forkner’s attorney. “If the government takes this case to trial, the truth will show that Mark did not cause this tragedy, he did not lie, and he should not be charged.”

Mr. Forkner was one of Boeing’s main liaisons to the FAA on the 737 MAX development, and some messages he wrote several years ago about his statements to regulators sound incriminating, according to attorneys who studied the indictment. Prosecutors still face hurdles to convicting him, including convincing jurors that he alone, and not regulators who approved the plane or Boeing executives above him, should face blame.

Mr. Forkner was charged Thursday with six counts of fraud related to his alleged role in persuading the FAA to approve pilot-training materials that excluded references to the flight-control system known as MCAS. He is the sole person charged in connection with Boeing’s interactions with the FAA regarding the 737 MAX before the crashes, which occurred in late 2018 and early 2019 and took 346 lives.

An indictment issued by a North Texas grand jury said Mr. Forkner learned during the 737 MAX certification process that MCAS had been expanded to operate at lower speeds. He had earlier told the FAA that the system didn’t need to be addressed in pilot-training materials because it would rarely, if ever, activate.

The FAA agreed with Boeing and Mr. Forkner about that, which allowed a finding that pilots wouldn’t need extra simulator training to fly MAX jets. That decision saved money for both Boeing’s airline customers and the plane maker, which would have been on the hook to compensate at least one carrier for the cost of additional training, according to the indictment.

Chad Meacham, the acting U.S. attorney for the Northern District of Texas, said Mr. Forkner’s “callous choice to mislead the FAA hampered the agency’s ability to protect the flying public and left pilots in the lurch, lacking information about certain 737 MAX flight controls.”

Internal Boeing emails from Mr. Forkner described pressure that he felt at times within the company to convince the FAA that pilots wouldn’t need extra simulator training. The indictment quotes Mr. Forkner writing in an email that a stricter training classification would “be thrown squarely on my shoulders.”

“It was Mark, yes Mark! Who cost Boeing tens of millions of dollars!” the email says.

Prosecutors will have to convince a jury that information Mr. Forkner allegedly withheld from regulators regarding MCAS was material, meaning it influenced or could have influenced the FAA’s decision about pilot training, according to attorneys.

To show that, FAA employees will likely have to testify about what Mr. Forkner told them, according to attorneys.

That would open the door to questions about whether the FAA failed in its own watchdog functions—and whether it is now blaming Mr. Forkner to dodge accountability for itself, said Sidhardha Kamaraju, a former federal prosecutor in Manhattan and now a partner at Pryor Cashman.

“If you were a defense lawyer here, part of your cross examination and argument could very likely be why these FAA employees have an incentive to cast the blame back on my guy, because otherwise the natural implication is that they screwed up,” said Mr. Kamaraju, who isn’t involved in the case.

Some offices within the FAA knew about key changes to MCAS even if the agency’s training specialists whom Mr. Forkner dealt with didn’t, according to former Boeing employees familiar with the 737 MAX’s development. There were also disconnects between various groups within Boeing that might have left Mr. Forkner unaware of key details, they said.

The FAA declined to comment.

Jurors hearing the case might naturally wonder why the government is pinning the tragedy on a single former employee, said Mark Lytle, a partner at Nixon Peabody LLP in Washington.

“If it comes across at trial that Boeing, DOJ and the FAA are all throwing this guy under the bus, there might be some sympathy among some jurors,” said Mr. Lytle, a former federal prosecutor who isn’t involved in the case. “This is like putting all of the crashes on one man’s shoulders. That is a tough thing to do here.”

There is a debate among pilots about the significance of MCAS’s role in the crashes. Some say Boeing’s design of MCAS is primarily to blame, while others say most of the fault lies with pilots’ failure to overcome a cockpit emergency.

The indictment renewed calls for Boeing executives to face some accountability.

“Mark Forkner’s indictment should not be the end of the accountability for this colossal and tragic failure,” said Rep. Peter DeFazio (D., Ore.), the chairman of the U.S. House Transportation Committee, which conducted its own investigation of the 737 MAX approval process.

Boeing declined to comment.

Mr. Gerger, Mr. Forkner’s lawyer, is a Houston defense attorney who represented a BP PLC employee charged in connection with the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. Mr. Gerger’s client, a supervisor at the well site, was acquitted by a jury after less than two hours of deliberation of a charge that he had ignored warning signs leading to the explosion.

Some of Mr. Forkner’s former colleagues expressed sadness and dismay with the prosecution. They also said prosecutors are casting blame on a relatively low-level employee who followed his bosses’ directives.

“He did not go and act on his own,” said Rick Ludtke, a former Boeing flight-deck engineer who worked closely with Mr. Forkner on 737 MAX training matters but not MCAS.

Mr. Ludtke described Mr. Forkner as a “highly ethical and competent pilot trying to do his best in a terrible situation.”

Write to Dave Michaels at [email protected] and Andrew Tangel at [email protected]