Defendants in BP oil spill say Justice Department scapegoating them

Donald Vidrine, a BP well site leader from the Deepwater Horizon oil rig explosion, arrives at Federal Court before he is arraigned on manslaughter charges in New Orleans, Wednesday, Nov. 28, 2012. (AP Photo/Matthew Hinton) ORG XMIT: LAGH103
Donald Vidrine, a BP well site leader from the Deepwater Horizon oil rig explosion, arrives at Federal Court before he is arraigned on manslaughter charges in New Orleans, Wednesday, Nov. 28, 2012. (AP Photo/Matthew Hinton) ORG XMIT: LAGH103

Kurt Mix did not cause the catastrophe in the Gulf of Mexico. He cannot be blamed for the explosion on BP’s Deepwater Horizon, the corporate recklessness that created it, or the 11 lives lost and 4.2 million barrels of oil poured into the sea.

But on Monday morning, he will become the first man tried in connection with the worst environmental disaster in American history.

To some, the charges against him seem trivial when set against the backdrop of chaos and death on the flaming rig.

Mix, a former rank-and-file BP engineer, was indicted in May 2012 for deleting a string of text messages and voice mails months after the explosion, despite numerous notices from BP to save his communications.

Prosecutors will try to prove Mix got rid of the messages to hamper the government’s investigation into whether executives of the British oil giant knew how much oil was spewing from the runaway Macondo well, and when they knew it.

But his attorneys will likely ask the jury to focus on another question: whether the low-level engineer is simply an easy target to appease a public cry for a pound of flesh.

Mix says he is a patsy in the government’s investigation. He is not the only one who thinks so.

On April 20, 2010, 11 men died in the explosion, 50 miles off the Louisiana coast; their bodies were never found. For 87 days, millions of gallons of heavy crude poured into the Gulf of Mexico, into wetlands and onto the beaches of the Gulf Coast. Pictures of oil-caked pelicans and tar balls filled American television screens. BP’s embattled CEO Tony Hayward famously went on television to say he wanted to plug the leak because “I would like my life back.” The company became, to many, synonymous with corporate greed and carelessness. Its spotty safety record was widely criticized.

The government’s announcement that it had launched a criminal investigation made front-page headlines. Eventually, BP admitted it was negligent and that it had misled the public. But a corporation can’t get prison time.

Now, more than three years after the Macondo blowout, just four men have been charged. Three of them are low-level employees, facing the potential of decades in prison.

“It’s extremely difficult to work up the corporate ladder to the higher-level officials that the Justice Department and the public wanted to see charged in this case. It’s the nature of corporate crime: It’s very difficult to go up the chain of command,” said David Uhlmann, a law professor at the University of Michigan and former head of the Justice Department’s environmental crimes division. “The Justice Department probably decided it was going to charge whoever it could. The problem with that approach is that it lends itself to the claim being made, that the individuals are scapegoats.”

Mix was the first to be indicted. Then, in November 2012, came Robert Kaluza and Donald Vidrine, BP’s top two supervisors on the Deepwater Horizon drilling rig at the time of the blowout. Each was indicted on 11 counts of both seaman’s manslaughter and involuntary manslaughter, along with violating the federal Clean Water Act.

The same day, one high-ranking company executive was charged. David Rainey, BP’s former vice president of exploration for the Gulf, awaits trial on obstruction charges for allegedly lying to Congress about how much oil was gushing from the well.

The company itself pleaded guilty to criminal charges this year. BP admitted 11 counts of felony manslaughter, obstruction of Congress and a series of environmental crimes. It agreed to a $4 billion fine.

Transocean, the Swiss company that owned the rig, agreed to pay $1.4 billion in civil and criminal fines and penalties, mostly to resolve federal Clean Water Act civil penalty claims. And in September, Houston-based Halliburton, BP’s cement contractor on the Macondo project, pleaded guilty to a misdemeanor charge of destroying evidence and will pay a maximum $200,000 fine, serve five years of probation and donate $55 million to the National Fish and Wildlife Foundation.

No executives, however, were charged in the admittedly negligent practices that led to the explosion.

“It’s always hard to charge individuals with wrongdoing at higher levels in a company, because the higher-ranking officials are far removed from the day-to-day conduct and decision-making involved in the offense,” Uhlmann said.

“There’s no question that the Gulf oil spill involved substantial corporate wrongdoing, which is why BP paid a $4 billion criminal penalty. It’s a fair question whether, in a case with such corporate malfeasance, it’s appropriate to charge individuals at such low levels.”

When the rig supervisors and Rainey were charged, U.S. Attorney General Eric Holder boasted that the indictments would serve as a warning to companies and their employees who play fast and loose.

But Mix, Vidrine and Kaluza maintain essentially the same defense: that the government needed someone to take the fall, and they were the low-hanging fruit.

On Monday, Mix will be the first of them to face a jury.

“To me, it’s almost a laughable case,” said Blaine LeCesne, a law professor at Loyola University who has analyzed the criminal and civil cases stemming from the Deepwater Horizon disaster. LeCesne questioned the government’s motivation for bringing charges against the engineer.

“I’ve got to wonder what they were thinking with that indictment,” he said. “They pounced on the first thing they thought they had a shot at. But they don’t. They have no shot at this.”

A spokesman for the Justice Department declined comment Friday.

Unlike Kaluza and Vidrine, Mix played no role in the explosion or in the many missteps that BP and its partners in the drilling operation made that caused it. Mix, who lives in Texas, was brought in after the fact to analyze how much oil was gushing from the well.

In the days after the explosion, he determined that oil was flowing at a rate of about 64,000 to 110,000 barrels each day.

At the time, BP executives were telling federal investigators and the public that only 5,000 barrels of oil were being released daily.

Mix is charged with two counts of obstruction of justice — and facing a potential prison sentence of up to 20 years — for later deleting two strings of text messages: 200 that he exchanged with a BP supervisor, and another 100 with a contractor.

Federal prosecutors maintain that Mix deleted the messages “corruptly,” in an intentional attempt to dupe federal investigators about how much oil was spewing. They insist that the timing of the deletions is too convenient to be coincidental. The federal Securities and Exchange Commission sent a subpoena to BP in August 2010, and a vendor the company hired to retain records contacted Mix the following month to arrange for getting his records. Mix deleted the entire string of messages with his supervisor the day before the files were to be copied, according to the indictment.

A year later, the government subpoenaed Mix’s messages specifically. Two days before he was scheduled to turn over his cell phone, Mix allegedly deleted the exchanges with the contractor.

He also deleted 350 voice messages on his cell phone, including 40 from his supervisor and 15 from the contractor.

Mix’s attorney, Joan McPhee, scoffs at the charge of obstruction. Some of the messages the government later recovered dealt with mundane matters like yoga lessons and vacation plans.

McPhee contends that documents show that Mix’s estimates of 64,000 to 110,000 barrels a day had, indeed, been turned over to the U.S. Coast Guard in the wake of the explosion. And she accuses federal prosecutors of trying to withhold a Coast Guard report to bolster their case that Mix hid his findings to help BP save face and boost its stock price.

Edward Sherman, a Tulane University law professor who has followed the legal fallout from the spill, said it’s clear the government could not prove Mix conspired with any higher-ups at the company to delete the evidence. Otherwise, prosecutors would have charged those people too.

“Was the government trying to show that they’re tough? There’s a public outcry about the oil spill and what the government was going to do about it. An easy thing to do is let their prosecution wing go after somebody and get some press. That’s the scenario the defense is going to try to sell,” Sherman said. “I think there’s some truth to that. Investigators are put on a particular case, and they like to be able to come up with something.”

BP also put blame on low-level employees this spring during the first phase of a federal civil trial, when the oil giant and the federal government sparred over whether BP or its partners should be held liable for the disaster.

Kaluza and Vidrine were responsible for overseeing operations as the rig crew drilled the Macondo well, which was in about 5,000 feet of water.

BP’s 2010 internal investigation concluded that just hours before the explosion, the men misread a critical “negative pressure test” performed on the oil well to determine whether the well’s bottom was properly sealed. Cement had been pumped down the line to form a barrier against the explosive natural gas and oil deep below the seabed.

A successful reading would have shown no pressure in the drill pipe running into the well; a positive result is a clear signal that the well is not secure.

The 2012 indictment against both men charged that they had missed the warning signs. Despite high pressure readings, they relied on a heavily disputed explanation of a “bladder effect,” a notion that the indictment labeled “scientifically illogical.”

In turn, the rig crew began removing heavy drilling mud from the riser, replacing it with lighter seawater, which allowed oil and gas to flow freely up the riser and onto the rig floor.

The indictment said the pair “negligently and grossly negligently failed to maintain control of the Macondo well.”

Several expert witnesses and employees of the companies involved in drilling the well who testified during the first phase of the civil trial highlighted the significance of the botched pressure test reading.

Richard Heenan, an independent drilling consultant who handles planning, permitting and operational management of drilling operations, testified that the negative pressure test “was a gross and extreme departure from the standards of good oil field practices.”

Heenan, in a 2011 expert report submitted on behalf of the Justice Department for the trial, contended that the “bladder effect” was a myth. “The proposal of the bladder effect, which has no technical basis, and the adoption of that theory, demonstrates the abdication of responsibility of both BP and Transocean,” Heenan wrote. He noted that the pressure test was “a safety-critical test, and the last diagnostic test of the integrity of the well prior to placing it into an under-balanced situation.”

Two hours after the botched reading, the Macondo well blew out and the rig exploded.

Kaluza, who had arrived onboard the Deepwater Horizon only four days earlier, has invoked his Fifth Amendment right against self-incrimination. Vidrine, who lives in Lafayette, has cited medical problems in refusing to testify in hearings held after the spill to assess what went wrong.

In court filings, Kaluza and Vidrine have maintained their innocence. Shortly after the charges were filed, Kaluza’s lawyer, former federal prosecutor Shaun Clarke, told reporters his client was a victim of the Justice Department’s desire for flesh-and-blood defendants.

“After spending nearly three years and tens of millions of dollars on this investigation, the federal government needs a scapegoat,” Clarke said. “Unfortunately, they settled on Bob.”

Court watchers have questioned how liable the men should be found, considering the explosion was the result of perhaps a dozen mistakes, only one of which they were responsible for. Moreover, the bad decision put their own lives at risk.

LeCesne acknowledged BP’s long history of safety violations and its documented pattern of cutting safety corners in the name of profits. But there’s a big difference between creating a corporate culture that pushes employees to take risks to make money and knowing, firsthand, about those risks being taken, he said.

Creating the culture is irresponsible — even negligent, maybe — but it’s not necessarily criminal, he said.

“The corporate responsibility does not displace your individual responsibility for taking action that puts lives at risk. You’re still making those decisions,” he said about the rig supervisor’s role in the blowout. “It doesn’t really matter if it’s the night-shift guy or the president of the company. These charges involve manslaughter, and manslaughter is a conscious and callous indifference to the risk of serious harm. What could you have done to avert that risk of harm, given what you knew?”

He believes the cases against Kaluza and Vidrine are stronger than the government’s complaint against Mix.

But Uhlmann believes the jurors will, ultimately, consider the big picture.

“The jury will be asked to make determinations about the defendants’ negligence, not about whether either should be blamed for causing the Gulf oil spill,” he said. “But the defense attorneys will do everything they can to try and shift the jury’s focus away from what the defendants did and toward the larger question of whether it’s fair to blame them for the worst environmental disaster in history. That’s not the factual issue that the jury will be asked to resolve. But that’s the larger issue in the case.”