Weather in the Courtroom

Memoirs from a Career in Forensic Meteorology

William H. Haggard

• Editorial: American Meteorological Society
• Año: 2016
• ISBN:
  9781940033969
• Categoría: Biological Sciences
• Categoría: Science General

As director of the National Oceanic and Atmospheric Administration's National Climatic Data Center in the late 1960s and early '70s, William H. Haggard witnessed an explosion in the number of requests from attorneys needing weather data for their cases. But while the Center offered data certified by the Department of Commerce that could be submitted as evidence in a court of law, government meteorologists could not be released from work to interpret this data in the courtroom. In their place, pioneering forensic meteorologists stepped in to serve as expert witnesses.For a society enthralled by courtroom drama, forensics, and natural disasters, Weather in the Courtroom is a perfect storm: an exciting inside scoop on legendary court cases where the weather may—or may not—have played a crucial role. Haggard explores both the meteorological facts and human stories of a variety of high-profile cases among the hundreds in which, after retiring from the government, he served as an expert witness. Were the disappearance of Alaskan Congressman Nick Begich's plane on October 16, 1972; the collapse of Tampa Bay's Skyway Bridge on May 9, 1980; and the crash of Delta Flight 191 in Dallas/Fort Worth on August 2, 1985, natural or human-caused disasters? Haggard's recounting of these and other litigations reveals just how critical the interpretation of weather and climate data in the courtroom is to our understanding of what happened—and who, if anyone, is at fault.

CHAPTER ONE

BROWN V. JONZ

The Mysterious Loss of Two Congressmen, Alaska, 1972

THE EVENT

Two congressmen, an administrative assistant, and pilot disappeared while flying from Anchorage to Juneau, Alaska, on October 16, 1972. Alaskan Congressman Nick Begich was campaigning for reelection to the 93rd Congress. House Majority Leader Hale Boggs, from Louisiana, was in Alaska to support Begich in his reelection campaign. Both had spoken at a fundraising meeting in Anchorage on October 15 and were to attend a campaign rally in the capital, Juneau, the next day.

Don Jonz, a supporter of Congressman Begich’s campaign, was the chief pilot and sole stockholder of Pan Alaska Airways, Ltd., an Alaskan air taxi service. He offered to fly the three men to Juneau for free in his company’s Cessna 310C, as a convenience to them and a political favor. His flight experience included many hours of cross-country, multiengine, and instrument flight time (flight time with reliance on the instruments within the aircraft rather than visual reference to the environment). He had flown the Cessna 310C, a twin-engine, propeller-driven, multipassenger aircraft, from its base in Fairbanks to Anchorage on the evening of October 15 and remained overnight in Anchorage in preparation for the next day’s 645-mile flight to Juneau.

PLANNING THE FLIGHT

At 6:56 a.m. Alaska daylight time on October 16, Pilot Jonz telephoned the U.S. Government Flight Service Station (FSS) at Anchorage, which provides weather- and flight-related information to pilots, and asked for the existing and forecast weather along the route of flight from Anchorage to Juneau for the next six hours, including Anchorage, Cordova, Yakutat, Sitka, and Juneau weather details (see Figure 1.1). The weather briefer provided the 6:00 a.m. weather details at those locations as well as the forecasts for those airports: the forecast winds from the surface to 12,000 feet, the area forecasts (a prediction of weather along the entire route), as well as a prediction of the conditions within a major mountain pass, Portage Pass, 36 miles southeast of Anchorage, through which the plane would have to fly. The weather briefing indicated that at 6:00 a.m. there were portions of the route that would require instrument flight rules because of early morning clouds and fog (see Figure 1.2).

THE FLIGHT

After the flight departed at 9:00 a.m., the pilot called the FSS to report his planned route of flight and estimated time of flight of 3 hours and 30 minutes. He received updated weather information, indicating improving conditions during the later morning hours in the Yakutat to Juneau portion of the flight when the fog and low clouds would be burned off by the warming sunlight. The major mountain pass at Portage was forecast to be closed for visual flight rules (VFR flight) by the National Weather Service (NWS) at Anchorage, based on an estimate of the likely low clouds in the valley, though there were no observing stations in the valley. Pilots can file a VFR plan under good weather conditions, where they can see where they are going. Otherwise they are required to file and fly under instrument flight rules (IFR) under bad weather conditions, where clouds, fog, and precipitation can obstruct their sight, requiring instruments for their orientation.

The pilot radioed the FSS and filed a VFR flight plan from Anchorage to Yakutat then direct to Juneau, his destination. The specialist accepted this plan and asked if he had emergency gear and a locator beacon [electronic locator transmitter (ELT), which sends radio signals activated in crashed aircraft] aboard. He replied “affirmative.” The plane was last seen by Anchorage Airport Tower personnel about two miles southeast of the airport at 2,000 feet, headed toward Portage Pass. Four hours and 15 minutes later, the U.S. Coast Guard Rescue Coordination Center (RCC) at Juneau advised the U.S. Air Force RCC at Elmendorf Air Force Base (north of Anchorage) that the Cessna flight was 45 minutes overdue at Juneau.

THE SEARCH

The Air Force base contacted all airfields near the route for any information they might have about the flight. None was found. They then diverted an already airborne, Lockheed HC-130, four-engine, turbo-propeller, specially equipped search and rescue aircraft to search along the planned route of flight for the missing aircraft. It failed to find any evidence of a downed plane. A massive search followed from October 16 to November 24, covering more than 300,000 square miles. Aircraft and helicopters flew more than 3,000 hours. I was told that the Lockheed SR71 Blackbird, a secret military plane, was included in the search but without results. Extensive marine searches by ship of Prince William Sound, the Gulf of Alaska, and Icy Strait were conducted. Ground personnel twice searched much of Portage Pass, which is where some believed the plane had likely crashed. Despite the thoroughness of these extensive searches, nothing was found that could be identified as related to the plane or its occupants.

THE NATIONAL TRANSPORTATION SAFETY BOARD

The National Transportation Safety Board (NTSB) conducted an investigation of the accident and issued an “Aircraft Accident Report” (NTSB-AAR-73-01) (NTSB 1973), which was adopted on January 31, 1973. The 25-page report, an official government document available to the public and widely distributed, followed a standard format of abstract, investigation, analysis, conclusions, probable cause, recommendations, and had five attachments dealing with proposed route of flight, aviation weather forecasts, pilot information, aircraft information, and investigation and hearing. In describing the 38-day search, the NTSB made no mention of the role of the U.S. Air Force Blackbird, probably because of the secret classification of the plane at, or prior, to that time. The NTSB report’s four conclusions were as follows:

• The pilot was qualified.

• The aircraft was qualified, though it was not equipped with an emergency locator transmitter.

• The pilot did not have a portable emergency locator transmitter nor survival equipment on board.

• The weather conditions along the route were inappropriate for visual flight rules.

Under the section of the report titled probable cause, the NTSB report stated: “The Safety Board is unable to determine the probable cause of this accident from the evidence presently available. If the aircraft is found, the Safety Board will continue the investigation and make a determination as to the probable cause of the accident” (NTSB 1973, p. 9).

ODD REPORTS

Not mentioned by the National Transportation Safety Board in its factual report, I was told that news articles contained a number of odd occurrences stating that a Coast Guard helicopter pilot reported picking up very strong emergency locator beacon signals the day after the flight. Pilots of two jet-powered Coast Guard helicopters said they picked up a signal 10 miles west of Juneau in mountainous terrain. With no other aircraft reported missing at that time, who else might have transmitted such signals? Another odd report came from a story of five California citizen band radio operators, who were convinced they had talked to the missing pilot. The information they relayed to the Air Force in their interview was ignored.

THE SUIT IN THE SUPERIOR COURT OF ALASKA

The families of the two congressmen had accepted the $150,000 per seat insurance carried by Pan Alaska Airways and agreed not to file lawsuits. However, the widow of the administrative assistant Russel Brown, also on board the flight, sought greater compensation, declined the insurance, and filed a suit against the pilot’s estate. She alleged her husband’s wrongful death resulted from negligence and improper actions of the pilot Don Jonz. Her case hinged on the legality of his flight as filed. The plaintiff wanted to prove the weather was too bad for pilot Don Jonz to take off and fly under a visual flight rule plan. Visibility in Portage Pass was the main focus of the suit.

Charles Hagans was the attorney defending the estate of pilot Don Jonz. He realized it was a weather-related case. In February 1976 he sought my aid as an expert witness, professionally qualified in aviation weather, to assist in his defense of the estate of the deceased pilot. He asked that I obtain the pertinent weather data from the National Climatic Data Center and analyze the weather conditions along the planned route of flight throughout the day of the flight. He requested I form an opinion as to whether VFR flight was possible. My analysis relied on observed and forecast weather conditions and what information would have been available to the flight service station briefer in his conversation with the pilot.

PORTAGE PASS

After the trial started, Charles Hagans chartered a small aircraft and pilot. He wanted me to be flown over the early portion of the flight route to become familiar with the terrain and the weather. We flew over Turnagain Arm of Cook Inlet (see Figure 1.3). At the east end of the water-filled arm is Portage Pass, a valley bottom at 400 feet above sea level running northwest to southeast between the 3,000- and 6,000-foot high mountains of the Chugach Range, through which small vessels from Prince William Sound had been portaged to reach Anchorage in the early history of settlement of the area.

The valley is considered open to VFR flight when the skies within the pass are clear and visibility good. If clouds cover more than half the sky below 8,000 feet, the valley is considered open only if the bottoms of those clouds are more than 3,000 feet above the ground and both sides of the valley and its pass are clearly visible from an aircraft below the clouds. Otherwise the valley is considered closed. Without observing stations, pilots were permitted to take a look to determine the conditions within the pass and proceed if they were good, but return from the valley before entering clouds.

On both the day of the Cessna 310C flight in 1972 and my flight in 1976, the prediction was that Portage Pass was closed, though after taking a look on my flight in 1976, it was open with only a few scattered clouds above 3,000 feet above the ground. This flight became an excellent and spectacular sightseeing trip during which the pilot pointed out multiple remnants of crashed planes on the lower slopes of the pass and recited the names of their pilots and when the crashes had occurred. None, of course, were the Cessna 310C. The familiarization flight continued southeast over Prince William Sound and returned to Anchorage without incident.

COURTROOM LESSONS

I quickly learned that to be effective, in addition to his/her expertise in their professional field of work, an expert witness needs to be aware of the fundamentals of courtroom procedure. Since I was, at that time, inexperienced in courtroom procedures, Attorney Hagans had me sit quietly in the spectator area of the courtroom during the plaintiff proceedings, observing and noting the weather testimony of the several Alaskan bush pilots. They all testified Don Jonz was negligent in attempting to fly under VFR in the existing weather and should have never attempted the flight even though he was IFR rated.

The plaintiff’s case took several days, during which I worked in the evenings with Sanford Gibbs (then a clerk and later a partner in the law firm). His probing questions and enthusiastic interest in weather provided a challenging opportunity for me to obtain greater knowledge of the complexities of Alaskan weather. He spent many hours with me going over details of the anticipated weather testimony and developing proper direct examination questions. The direct questions, which are standard courtroom procedure, are those asked to the witness by the engaging attorney to illustrate the facts. These are followed by the cross-examination questions, where the opposing attorney attempts to dispute the testimony.

We also coordinated the improvement of courtroom visuals to illustrate the anticipated weather testimony. Though I had prepared some overly simplistic visuals at my office, I was encouraged to engage a graphic art firm to prepare illustrative visuals to demonstrate the relation of the observed and forecast weather pertinent to the flight and its relation to the complex Alaskan topography along the planned route of flight. The personal guidance by Sandy Gibbs and Charles Hagans was extremely valuable to me in preparation for my first time on the witness stand. Such advice was as follows:

• Tell only the truth.

• Listen to the questions, and answer only the questions asked.

• Do not volunteer information not directly related to the question asked.

• If a yes or a no will suffice, simply say yes or no.

• Never answer with a nod or a head shake; always say yes or no.

• Wait for the entire question before answering.

• Think carefully before speaking.

• When answering, look directly at the judge, or the jury, if present (do not look at the questioning attorney).

• NEVER lose your temper or argue with the questioner, and remain calm and polite at all times.

• If an attorney says “objection,” stop answering, wait for the judge to rule, and answer only the new question.

• If you do not know, say so (do not speculate).

• Be as brief as possible in each answer.

• Speak loudly enough that all the participants (judge, jury, attorneys, recorder, etc.) can hear you.

• Be polite at all times, even if you feel an attorney is badgering you.

• Never speak to a juror outside the courtroom during the trial.

The hardest for me was the admonition to look at the judge (with a nod) and then speak to and look directly at the jury when answering a question, as my instinct was to look and speak directly to the questioner. Charles Hagans had to move to the side of the jury box, point to them, and say, “Please tell the jury.”

In preparation for the defense weather testimony, Sandy Gibbs and I reviewed the National Transportation Safety Board Accident Report; the factual report (everything but the “probable cause”) was admissible in litigation and was heavily relied upon by all parties in the case of Brown v. Jonz. Since news articles are considered hearsay, they are not admissible as evidence in court. The NTSB Accident Report did not mention the odd reports, so they were not taken into consideration by the court.

As is customary, the plaintiff case was presented in the first several days of the trial. A series of fact witnesses were presented and related the pertinent known facts of the events, including most of the information in the factual portion of the NTSB Accident Report as well as the details of Russel Brown’s life and finances and criticism of Don Jonz. These were followed by a number of Alaskan pilots who described their interpretation of the weather on the date of the accident, fight rules, their experiences in flying all or portions of the flight route at various times and under various weather conditions, and why they thought the flight should never have been attempted. Each was asked if they would have attempted to fly the route on a VFR flight plan on the day of the accident. All replied no for reasons such as

• the ceiling and visibility at Juneau at 6:00 a.m. (when Don Jonz obtained his weather briefing) were too low to be able to land there (at that time of day),

• Portage Pass was forecast to be closed, or

• it was a bad weather day.

None compared the weather at specific locations and times when the flight would have passed them with the flight rule requirements, and the plaintiff did not produce a meteorologist to testify but relied upon the several pilots to imply the illegality of the flight under visual flight rules.

When it was time for the defense’s weather testimony, Mr. Hagans first had me present my educational and employment history and qualifications and asked the court to accept me as an expert in aviation meteorology. Then he began the direct examination. I was asked to answer a series of factual questions regarding the observed and probable weather along sequential sections of the route. I based my answers on official certified copies of data obtained from the government weather archives at the National Climatic Data Center.

The newly created visuals, including a map of the geography of Alaska between Anchorage and Juneau, with ...