WILLFUL

 MISCONDUCT

By

William Norris

Prelude

Room 64G, in the cellars beneath the United States District Court for the Central District of California, is some way off the Los Angeles tourist route.   Above it, in the filing section on the ground floor of the imposing building on North Spring St., a stern notice forbids public entry.  Beyond this sign, a steep flight of stairs leads down to a catacomb of roughcast concrete and dusty pipes.  Here is a tomb without bones; a mortuary of long-forgotten files and long-abandoned catalogues of legal pain.   It is a place where hopes and dreams and aspirations share the upright coffins of the filing cabinets with tragedy and pain.  The paper detritus of the act of dying is all around.

Room 64G contains more than its fair share of death. Behind a dull green door, its lock stiff with disuse, are the exhibits that catalogue the end of ninety-seven lives: those of the men, women and children who took their last trip on Flight 806 of Pan American World Airways from Auckland to Pago Pago on January 30, 1974.

I had gone to the courthouse in search of something; I knew not what. I only knew that the crash at Pago Pago, so small and insignificant by later standards of disaster, had spawned the longest, most complex, and most expensive legal case in aviation history. I wanted to find out why. Perhaps here, where the exhibits were left at the conclusion of the first trial in July of 1978, I would find some clue.

I was dredging for inspiration, seeking to find some foothold from which to climb the mountain of research that would undoubtedly lie ahead. I was not to know that before the day was out I would hold in my hands an unexploded bomb; a document so explosive that lawyers and judges had spent years making sure that it would never reach the public. It was called the Hudson report.

I had heard of this document, at least by repute. In December 1975, in a progress report to his clients who were suing Pan American for damages, Los Angeles attorney Daniel C. Cathcart had referred to "a detailed FAA (Federal Aviation Administration) investigation of the Pan Am operation from the point of view of aviation safety." He was full of confidence. "I feel we have reason to believe," he added, "that the Pago Pago air crash litigation will be a matter of past history by this time next year." Read in 1981, with the action still going full blast, the words had an air of sad bravado.

On March 24, 1976, in his fourth progress report, Cathcart wrote:

"In addition we have uncovered a group of reports by Pan American pilots based at San Francisco, citing the dangerous practices engaged in by Pan American…..with the information which is now in admissible form, contained in the FAA investigation reports, Pan Am's own in-house investigations of its operation, as well as the report submitted by Pan Am pilots, I cannot believe that the management will permit this case to go to trial.

"The contents of these reports are by court order not to be released to anyone. Once this case goes to trial the order will not apply, and the press will undoubtedly pick up these reports, and the international dissemination of these documents has the potential to destroy Pan American as an operating entity."

It was strong stuff. Clearly these documents were of the utmost importance. Yet at this point the trail went cold. There were no press accounts that I could trace, nor any indication that the reports had been produced at the trial. And there was one further mystery: I had been shown the report quoted above by one of the survivors of the crash. Yet when the lawyer subsequently opened his files to me, with apparent total frankness, that letter was missing from the sequence of progress reports stretching over seven years. What was more, the later documents had been renumbered, so that there was no reason to suppose that one was missing. Had I not happened to chance upon it in New Zealand and had the accidental foresight to make a copy, I would never have known of this alleged sensational evidence.

Had the FAA report ever existed? That was the question that worried me. If so, had it been the subject of an elaborate cover-up operation to protect the reputation of America's most prestigious airline? One thing seemed certain: if such a cover-up had taken place, no one would have been so careless as to leave the report lying around where inquisitive people like me could find it.

I resolved to take up the search in Washington, D.C., where I had friendly contacts in the aviation community. In the meantime there seemed no harm in having a look at the archives of the court where the long drama had taken place. There was no telling what might turn up.

The clerk in charge of the exhibits section of the district court was a pleasant and efficient young man named Lee Torbin Jr. Mr. Torbin received my request to look at the relics of the Pago Pago trial with polite disbelief. It was clearly beyond his experience that anyone, even a crazy British author, should want to see such things. I had the distinct impression that he had no idea where the stuff was kept, but luckily my total ignorance of its file numbers, which by regulation had to be written down before the request could be granted, saved him from having to admit the fact. Still, he was very nice about it.

The response was discouraging, but I had all day. Having travelled a long way and spent a lot of money to stand in that office, I was disinclined to give up without a struggle. I stayed on one side of the high wire grille. Mr. Torbin stayed on the other, and for an hour or two we swapped polite suggestions and refusals while the more orthodox business of the records office went on about us.

At length he seemed intrigued by my persistence. It was becoming plain that I had no intention of going away and leaving him in peace. "Hey, Charlie," he called to one of the other clerks, "didn't they put all that Pago Pago stuff in a cellar someplace?" Charlie thought they had. Someplace. All at once Lee Torbin Jr. reached a decision, probably born of desperation. "Come on," he said to me. "Let's go look." And to my great surprise he beckoned me behind the counter, past the prohibiting notice, and down the stairs. We were headed for room 64G.

For a journalist, there is a very special thrill in being where he ought not to be, seeing what authority wishes him not to see, or reading what he is not supposed to read. I felt it strongly that day.

It took some effort to shift the stubborn lock on 64G, but at last we were in. Mr. Torbin and I were alone with the legal relics of Pago Pago. It was a shock. Where I had expected neat rows of filing cabinets and boxes of exhibits in duly labelled sequence, I saw instead a mountainous jumble of paper. The cellar, perhaps thirty feet square, was filled on every side to a height of about six feet with a great amorphous hotchpotch of boxes and files. Here and there the top of a filing cabinet poked through the surface like an iceberg in an angry sea. The records of Flight 806 had not been laid to rest by a tidy mind.

Where the hell did I start? I looked at Mr. Torbin and Mr. Torbin looked at me. I cleared the front of one filing cabinet and began to open the drawers. It became rapidly apparent that there was no more order inside the cabinets than out.

Sheaves of paper, some in folders, some not, and none with any discernible label, tumbled out as I dug deeper. The damn things must have been breeding in the dark. A quick glance seemed to show that none was of any interest, though it was difficult to tell. I had the horrid feeling that the story of the century could be lurking in this Augean cellar, and I would be none the wiser.

I abandoned the first cabinet and took off my coat, wading into the pile of boxes as though there might still be a survivor beneath them. Mr. Torbin stood uncertain, bemused by this latest evidence of literary derangement, then decided to humor me and lend a hand. It was clearly going to be the only way to get rid of me.

At length, in a far corner, a green filing cabinet emerged. It was like the rest, save for one thing: this one had numbers on the drawers. Hardly daring to hope, I pulled open the first to discover orderly file covers, numbered in sequence. If someone had taken the trouble to put the contents in order, when all around was chaos, it just might contain something important. I began leafing through the papers. The sharp, regular sound behind me was Lee Torbin Jr., tapping his foot.

And then I had it. Inside a plain brown envelope, unsealed, was an unmarked file cover. But the title page of the papers within made me catch my breath. It read: "Report of Pan American pilots of Council 56, and FAA Special Investigation Team at Training Building, San Francisco airport, May 6, 1974."

A swift glance through the contents showed that Cathcart had hardly been exaggerating. I hurriedly put the file back in the envelope and laid it aside, trying not to betray my excitement. Then I went back to the cabinet to resume the search. Where there was one gold nugget there might well be two. And so it proved. The second was dated June 13, 1975. It was a report addressed to the Assistant Administrator, AEU-1 (whoever he might have been) from a certain Jack W. Hudson. Hudson was described as Team Coordinator, and chief of the FAA's Air Carrier District Office at Fort Worth, Texas.

It was the third line that caught my eye: "SUBJECT: Special Inspection - Pan American World Airways, 1974." I had found it.

That was the limit of my success. There was no sign of the alleged in-house report by Pan American, which I later discovered was known as the Thomas Report, but it was enough. I was confident that I held in my hand evidence that had long been concealed. Would its revelation do anything to help the plight of those who were still suffering, uncompensated, more than seven years after the Pago Pago crash? I did not know, but I had to try.

Lee Torbin Jr. held out his hand. "I'll take those," he said. I reluctantly handed over the files as we left room 64G, which looked even more chaotic than when we had entered, and went back to the wire cage that served as his office. Torbin laid them on his desk and I stood there, unable to take my eyes off the brown envelopes, like a child in a candy store. My palms itched.

Torbin said: "I don't think I can let you have these." Oh shit, I thought. There they are, so close, I could just grab them and run. I had visions of being pursued from the courthouse by a screaming mob of legal bureaucrats, let by Lee Torbin Jr. But the thought came and went. Anyway, the wire cage was locked. Surely I was not about to fail now? I knew it would be fatal to appear too anxious.

"Why not?" I asked. As though it did not matter.

"I have a vague feeling," Torbin said, "that some of those exhibits were put under judicial seal by Judge Byrne. [the judge who had tried the Pago Pago case.] I think these might be among them."

My heart did a double flip and landed in the region of my toecaps. It could well be so. That would explain why the documents had disappeared so completely; why they had never come up in open court and why no one had been able to pry them loose under the Freedom of Information Act. A judicial prohibition would have stopped all that. It would stop me, too. There was no way that Lee Torbin Jr. was going to put his job on the line for the sake of my bright blue eyes.

"I'll have to check," he said.

The next fifteen minutes lasted a long time. First, Torbin telephoned Judge Byrne's clerk, Lori Serif. She was new in the job and did not know the answer. He rang the court reporter, who could not remember. He rang, and rang, until my nerves were in shreds and there seemed to be no one left in the whole court building who had not been asked the question. But none of them knew the answer.

"Surely," I ventured, "that must mean that they are clear. If they are under seal, one of these people is bound to know."

But the ultra-cautious Mr. Torbin was having none of it. He had to have a positive answer before he would let me see those papers. I could not blame him. It was his neck.

Finally he had an idea. "I know who can tell us," he said. "Judge Byrne had a clerk at the time of the trial who retired not long ago. I'll call her." He found the number and explained the problem. His next words were ominous. "Is all the Pago evidence under seal?"

Four-letter words passed silently in coarse procession through my mind. The envelopes on the desk before me seemed to blur and recede. So near, and yet…..I stood there like a dummy while the conversation continued. I could make little sense of what was being said and by now was paying scant attention. It was just a question of gritting my teeth, thanking Mr. Torbin for his help with as much sincerity as I could muster, and writing off the whole episode to experience. Perhaps there would be another way to get hold of the Hudson Report. I doubted it.

At length Lee Torbin Jr. put the receiver down and smiled. "Do you want copies?" he asked. "They'll cost you fifty cents a page."

(I subsequently discovered that the lady in question had disliked Judge Byrne with a passion, and had seized the opportunity to get her own back from the safety of retirement) 

Later that day, with the copies locked in my briefcase, I recounted the episode to one of the lawyers involved in the case. The reports, he told me, were definitely under judicial seal and had been for years. They would remain so at least until all the appeals had been heard; perhaps for ever. He and the other lawyers in the case had copies, but had been sworn not to reveal their contents to anyone.

So where did that leave me?

"Go ahead and publish," he said. "No one can stop you. Remember the First Amendment to the Constitution."

And so I will. For though the scandals they reveal are now history, history has a nasty way of repeating itself if nothing is done to prevent it. Things happened, and without public awareness could happen again. Somewhere, on some airline, they may be happening still. No one really knows.

The deeper I researched this story, the more unpleasantness came to light. Long-shut cupboard doors swung open to reveal a host of skeletons. For the tale of Flight 806 is more than the suppression of the Hudson Report, the training records of the flight crew, and all the rest of the evidence that the jury were never allowed to hear. It is basically the story of man's inhumanity to man; a little vanity, a little greed, a little ruthlessness, all adding up to a major act of injustice.

In the view of some lawyers, the tale was not ready for telling at the time this book was first published. The last page in the saga had yet to be written. The skill of attorneys, the tardiness of some judges, and the creaking machinery of the legal system was to prolong the agony for years.

But for the sake of those who had already waited more than eight years for compensation, for their own injuries or for the death of their loved ones, it seemed important that the story be told.

So here we go………..

Willful Misconduct is available  from: www.synergebooks.com 

OTHER BOOKS BY WILLIAM NORRIS

All available in paperback or e-book format from www.synergebooks.com

Bill Norris is always pleased to hear from readers.   You can reach him via e-mail at william.norris@nordnet.fr