McPhee, McGovern: DOJ's prosecutorial zeal led to Deepwater debacle
U.S. Department of Justice's misguided pursuit of man highlights failures of its conviction attempts in BP case
By Joan McPhee and Michael McGovern
January 6, 2016
After years of prosecution and millions of taxpayer dollars, the U.S. Department of Justice is now 0-4 in its pursuit of felony convictions of BP employees. This across-the-board failure is worth examining in light of DOJ's guidelines calling for greater focus on individual misconduct. We may regret the heightened push to prosecute individuals if DOJ's tough-on-crime stance is not accompanied by meaningful checks on prosecutorial power.
In the aftermath of the Deepwater Horizon tragedy, Americans had every right to expect that the Department of Justice would conduct a comprehensive investigation. At the same time, the public had the right to expect fairness and respect for due process. DOJ plays an important role in correcting corporate misdeeds. But its misguided pursuit of former BP engineer Kurt Mix is a vivid example of an investigation borne of prosecutorial zeal that was launched with a presumption of guilt and no credible evidence of wrongdoing.
A Houston-based, deepwater drilling engineer, Mix played no role in the events leading to the spill. DOJ's Deepwater Horizon Task Force nevertheless trained its sights on Mix. Without just cause, prosecutors yanked Mix from his home, falsely accused him of obstruction of justice and threatened him with 40 years in jail. A four-year, multi-million-dollar legal disaster ensued, ending on Nov. 6, when DOJ dismissed the last remaining obstruction charge. Beyond the waste of taxpayers' money, this case raises serious questions. Was there an objective review of the charging decision? Was there oversight of the case? Is there sufficient accountability within DOJ?
The events speak for themselves.
In 2012, the Task Force charged Mix with obstruction for deleting two text-message conversations with coworkers who were also close friends. Neither conversation contained anything important about the spill that wasn't covered in the 10,000 records Mix had handed over.
Following a dawn raid, with federal agents ransacking Mix's home in Katy, DOJ's press release trumpeted Mix's arrest while misrepresenting the facts. Quoting U.S. Attorney General Eric Holder, it stated that Mix had "intentionally destroyed evidence requested by federal criminal authorities." As DOJ well knew, however, no federal criminal authority had ever asked Mix for anything.
As the case unfolded, the Task Force took ever more extreme and irresponsible positions. In a case about supposed hiding, prosecutors pressed the court to prevent Mix from introducing evidence of the records he had saved. They argued that even if Mix had saved "exact duplicates" of the messages he was accused of hiding, the copies should be kept from the jury as "irrelevant."
Prosecutors then asked the jury to convict Mix for deleting a voicemail message the prosecutors had never heard. Only when the defense recovered and played at trial the innocuous message did the Task Force dismiss the baseless charge.
For two more years, DOJ dug in. After obtaining a guilty verdict marred by jury misconduct, the Task Force fought to hold on to the corrupted verdict. The district judge threw out the verdict. Three more federal judges affirmed that the verdict could not stand.
In our decades of practice, this case stands out for its degree of misjudgment, and for its broader implications. Ideally, a task force enables a multi-faceted look at a complex problem. Yet in the very naming of a "force," incentives to find guilt run high. Setting a task force in motion, or placing undue emphasis on finding individuals to charge, risks upending the presumption of innocence that is a keystone of our liberty. More concerning still, an entrenched resistance can arise within DOJ, an unwillingness to re-examine poor decisions that may allow wrongful prosecutions to proceed unchecked.
Where is the justice in that?
McPhee and McGovern were counsel to Kurt Mix in his criminal case, U.S. vs Kurt Mix. Both previously worked for the U.S. Department of Justice as federal prosecutors in the United States Attorney's Office for the Southern District of New York.