Will Kurt Mix, Criminal Defendant in the BP Deepwater Horizon Incident, Go Free?
Former BP engineer Kurt Mix was the first, and for some time only, person criminally charged in the Deepwater Horizon incident. He has a court date October 2nd. A good possibility exists that the court may vacate the charges against him. Kurt Mix was called upon to stop the flow of oil after the rig had sunk. Therefore, he played no part in the tragic loss of 11 lives. He did not create the mess. He was tasked with cleaning it up.
As previously noted the question is, Was BP's Kurt Mix a Criminal or a Hero? Fortune's Walter Pavlo has been following the course of the legal maneuvering and wrote a column Prosecutors Gone Wild. He savaged the prosecutors, most of whom have already jumped ship on the prosecution, returning to lucrative private sector practices before facing the prospect of losing in court. He wrote:
"Maybe it's just me, but based on this "evidence", how could someone in a case like Mix's even get indicted? Recently, we found out and it provides a view as to how the grand jury was presented information in the case.
In a grand jury proceeding, prosecutors present their case, bring in a few witnesses and the grand jury chooses to indict or not. The grand jury is part of our Fifth Amendment right ["no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ."]. Okay, that sounds fair, but here is how Mix was indicted; testimony from two FBI agents that:
1) Mix had received several "legal hold notices" instructing him not to delete texts or voicemails, and;
2) After receiving those notices, Mix had deleted text messages and voicemails.
First, the grand jury was never told that the "legal hold notices" that Mix received were BP, not government (federal law), notices regarding document retention. That notice gave Mix discretion as to whether or not to preserve materials that he would "reasonably believe" were relevant to the spill. One would hope that people cannot be indicted, jailed, for violating company policies."
"Perhaps realizing that Mix had some good points that could lead the judge to dismiss this case prior to trial, prosecutors decided to link Mix to more misdeeds. On September 9, prosecutors, newly assigned to the case, stated that they intend to show that Mix misled the Obama administration's Secretary of Energy by providing inaccurate information on the amount of oil coming from the Macondo well. The "offense" happened on May 23, 2010 when a PowerPoint presentation was put together by BP to brief government officials and concerned executives during an overview of the spill situation. It was, "a slide deck that was not created by Kurt Mix; was presented at a meeting at which Kurt Mix was not present, to which he was not invited, and of which he was not aware; and was, in any event, not misleading in any respect," according to documents filed last week by Mix's attorneys. In fact, on the one slide that cites, in small print at the bottom, work calculations attributed to Mix, his first name is misspelled, "Kirt".
Prosecutors further alleged that Mix, knowing that early efforts to stop the well's flow of oil were in vain, kept quiet in the control room while in the presence of government officials, thereby obstructing the efforts to stop the spill."
The Magistrate in the case Judge Stanwood R. Duval Jr. has issued an order and opinion in which he sets a high bar for the prosecution.
The Court notes that some of the evidence listed by the government in its supplemental disclosure may be problematic with respect to whether the evidence is relevant. For instance, relevance may be disputed with respect to evidence that defendant "was in the control room during the Top Kill procedure, yet he again failed to raise the flow rate discrepancy"; that "defendant did not share with the government his observation during Top Kill that it was failing because the flow rate was too high and the orifice was too big"; that the document vendor's representative asked defendant "whether there were any other locations beyond his computer files where potentially relevant electronically stored information as defined in the legal hold order may be saved"; and that defendant allegedly falsely stated that there was not another such location. Doc. 471, p. 5.
Even if the government establishes the relevance of the evidence, it would still need to establish that the probative value of the evidence is not substantially outweighed by undue prejudice to Mr. Mix.
The Court further advises the government that with respect to the evidence of the slide deck, if the evidence is to be admissible, the government will have to establish, among other things, a proper foundation for that evidence consistent with the Court's prior rulings, e.g., that Mr. Mix in fact helped prepare the slide deck a slide within the deck, or knew that his information was being used in the slide, and that he knew that the slide deck was being distributed to government or quasigovernmental personnel.
There is no doubt that Mr. Mix was deeply involved in the source control effort. But it helps to put oneself in his shoes. On Saturday April 24, 2010 he received an email from William Burch detailing twelve possible failure paths for "7" x 9-7/8 Casing Annulus Flow". It is Exhibit 3905 from the ongoing trial in Judge Carl Barbier's court. The key thing to understand is that despite there being twelve possibilities, none of them was relevant. There was ZERO flow through that annulus. We know that because when the relief well finally intersected that annulus at a depth of 17,200 feet, there was no oil or gas to be found. Both the government and Halliburton admitted as much when the Feds accepted Halliburton's guilty plea to the destruction of computer simulations indicting that the number of centralizers used did not have a material effect on the well's annular integrity.
The next hearing is October 2nd. Kurt Mix could go free.