Criminal defense lawyer Joan McPhee, a partner at Ropes & Gray in Boston, Massachusetts, is at the center of what promises to be an epic battle with the United States Government.
Joan McPhee represents Kurt Mix, the first individual charged in the Eastern District of Louisiana relating to the BP Oil Spill in the Gulf of Mexico. Mix, an engineer who was working for BP, was charged in May 2012 with two counts of obstruction of justice relating to the deletion of multiple text messages. When he was arrested, attorney McPhee was immediately outspoken about the overreaching nature of the prosecution and was quoted as saying “These misguided charges over failure to retain text messages constitute startling government overreaching” based on the fact that “the government says he intentionally deleted text messages from his phone, but the content of those messages still resides in thousands of emails, text messages and other documents that he saved. Indeed, the emails that Kurt preserved include the very ones highlighted by the government.”
In November 2012, the case took a dramatic turn when three additional individuals, Robert Kaluzen, Donald Vidrine, and David Rainey were arrested and charged in the Eastern District of Louisiana. Kaluzen and Vidrine were both BP supervisors on board the Deepwater Horizon Rig and were charged with manslaughter. Rainey was a renowned BP deepwater explorer who testified before Congress and was charged with making false statements and obstruction of justice. Mix continues to be the lowest-level individual charged. Ironically, Rainey’s charges are largely based on the use of documentation from Mix. Additionally, around the same time, BP and the Department of Justice announced an agreement to satisfy BP’s criminal liability. The unexpected turn of events caused McPhee to file a Motion to Dismiss which was later denied but very powerfully sets the tone for the unfair nature of the Mix prosecution in light of the BP settlement:
“Critically relevant to the pending charges against Defendant Kurt Mix, the Assistant Attorney General of the United States — on behalf of DOJ and its Deepwater Horizon Task Force — made numerous factual assertions in the BP Information that are directly exculpatory of Kurt Mix, and indeed exonerate him. Thus, in a development both belated and dramatic, the Government has now affirmed what the defense has been saying since the day the Government wrongly and precipitously decided to bring this case: Kurt Mix is the last person who deserves to be sitting in federal court on obstruction of justice charges in connection with the Macondo Incident.”
The prosecutions of individuals relating to the 2010 BP Oil Spill has the makings to be a fight to the finish– especially when you consider them in light of the recently accepted BP criminal settlement with the Justice Department. As some of you may know, the company agreed to plead to 14 counts, including manslaughter, and further agreed to pay $4 billion in penalties. It is hard to reconcile an individual’s criminal liability when considered in light of a company’s ability to resolve its criminal liability by the payment of fines, regardless of how big. These cases, if tried, will certainly test our society’s view on individual vs. corporate criminal liability. The BP Oil spill is arguably the largest environmental crisis in the history of this country, and the fact that only four individuals are facing justice relating to that disaster while BP pays $4 billion in criminal fines seems oddly out of balance.
What is clear is that Joan McPhee is fighting for her client Kurt Mix with all she has. She came out of the gate fighting the moment he got arrested and continues to zealously fight for her client through every new twist and turn. And Mix is in good hands–McPhee was named in 2012 by Benchmark Litigation as one of the Top 250 Women in Litigation, been recognized by Chambers USA and Best Lawyers of in America, and Massachusetts Super Lawyers. This is a fascinating case and I for one will be watching Joan McPhee, the only woman criminal defense lawyer in the case. I will keep you posted.