On Tuesday, May 29, the attorneys for former BP drilling and completions engineer Kurt Mix got to make another motion on his behalf before a federal magistrate, and the Obama administration lost another round.  The miscarriage of justice in this case is appalling.  Let us review the timeline.

During April 2010, BP was engaged in drilling an exploratory well, Macondo 252, in about 5,000 feet of water offshore from Louisiana, using a drill rig, the Deepwater Horizon, provided by Transocean.  Given that the infrastructure was not yet built to produce the well (the pipeline to carry the production to shore), BP decided to temporarily "plug and abandon" the well, with the intent to return later with another rig to "complete" the well by reopening it and installing the production equipment.  That future "completion" operation would be designed by a "completion engineer" such as Mr. Mix.  It was during the plug and abandon operation that the crew of the Deepwater Horizon lost control of the well, when the rising natural gas caught fire and exploded, killing eleven and wounding many more.  Mr. Mix had nothing to do with causing the accident.  He was just a poor sap called in to perform the ugly task of cleaning up the mess others had made. 

FBI Special Agent Barbara O'Donnell started this mess when she went before a judge and filed an affidavit full of half-truths and misstatements of fact seeking to make an arrest.  She got her way, and Mr. Mix was arrested with great fanfare and the classic "perp walk."  Up to that point, Mr. Mix had been given zero chance to answer the charges.  You may have seen the perp walk and O'Donnell's affidavit, but have you seen his attorneys' response? It makes one sick.

Under the constitutionally mandated right to a "quick and speedy trial," Mr. Mix's attorneys finally got their chance to file a response to the claim that Mr. Mix had obstructed justice by deleting some 300 text messages from his iPhone before the trial judge, Jane Triche Milazzo, on May 14, 2010.  His attorneys provided the court with the exact text of all those messages not subject to attorney-client privilege by a third party to the oil spill litigation, as well as a request to also allow that privileged exculpatory evidence be admitted into evidence.

To quote from their memorandum:

The exculpatory nature of this information is compelling and unambiguous, and it conclusively demonstrates that defendant Mix did not commit the crimes charged in the Indictment.  Simply put, no reasonable juror presented with this information could find, as the Indictment alleges, that defendant Mix engaged in an intentional effort to obstruct the Government's investigation into the Deepwater Horizon incident (the "Incident"); indeed, the exculpatory information is of such a character that it eviscerates even the supposed "probable cause" upon which the Indictment is predicated.

Judge Milazzo recused herself from the case the very next day, citing her duty to recuse "from any proceeding in which [her] impartiality might reasonably be questioned" or when the judge meets one of a number of disqualifying circumstances, such as "personal bias or prejudice toward a party in the case[.]"  Perhaps after reading the texts Judge Milazzo was so disgusted by the tactics of the prosecutor and the FBI that she could no longer be impartial with them.  Something definitely caused her to suddenly recuse herself.  The FBI takes strike one!

Last Tuesday, Mix's attorneys filed another motion with the judge overseeing his bail arrangements and successfully got them modified so as to allow him to travel anywhere within the United States, subject to providing one week's prior notification to the court.  That judge thereby reversed himself in the imposition of very strict travel restrictions imposed during the arraignment.  Those restrictions had been based on the FBI's allegation that Mr. Mix posed a "flight risk" because he had once applied for a visa to work in Canada.  A report in Forbes now indicates that Mr. Mix applied for a work visa in 2009, months before the accident took place, and that the visa has long since expired.  No visa means he can't take flight.  Strike two!

Reviewing the actual texts now available in his attorneys' memo, only one is remotely relevant to the flow rate.  It is this one sent during the "top kill" operation in late May:

Too much flow - over 15,000 [barrels] and too large an orifice.  Pumped over 12,800 bbl of mud today plus five separate bridging pills.  Tired.  Going home and getting ready for round three tomorrow.

In paragraph 20 of her affidavit, Agent O'Donnell admitted that "[m]ost of these texts, including the text described paragraph 15 [sic] above, have been recovered been recovered using forensic tools, but some are still unrecoverable."  Which raises the question: among those other recovered texts, is there one quite as damning as the one reading "k," dated 5-13-201, at 7:40 PM?  Note that none of the texts includes any of these words: barrel, oil, flow, pressure.  There is absolutely nothing to do with the flow rate in any of the text messages in Exhibit A.  For crying out loud, these are only text messages!

The feds' alleged theory is that BP had falsely indicated to the public that the flow rate was less than 15,000 barrels before the top kill operation began.  They are trying to pin the public assertions of high-ranking officers of BP as to the progress of the top kill onto a low-ranking employee whose communications were restricted to insiders, and this specifically to avoid giving even the appearance of improper public disclosure.  Supposedly, Mix was informing his superiors that the top kill had no chance of success at the conclusion of the first day of the operation.  So why was he planning to "[g]o home and get[] ready for round three tomorrow"?  Why not go home and just cry himself to sleep, instead of putting in 16-hour work days?  Strike three!

The desperation of the government is palpable.  So to be fair to Mr. Mix in a pursuit of equal justice, let us take a look at what the government was (or was not) saying publicly.  Was the government obstructing justice?

I would hazard a guess that very few of you have ever seen this illustration, taken from page 95 of the Department of the Interior's Bureau of Ocean Energy Management, Regulation and Enforcement's Final Report EP030842 dated 20 March 2011.  This report was the result of an extensive, independent forensic examination of the blowout preventer (BOP) by Det Norske Veritas under the supervision and custody of the Department of Justice.

The picture shows a very detailed laser-generated representation of the condition of the blind shear ram (BSR) as recovered from the bottom of the Gulf.  You will note that the two halves of the ram (one green and the other yellow) are closed.  There are three views: the "Kill Side" at the upper left shows a side view from one side of the BOP; the "Choke side," another side view looking from the opposite direction; and the view at the right, looking at the BSR along the flow direction. 

The important point to observe is that there is significant erosion, particularly at the edge of the rams on the sides, where they are in close proximity to the internal bore of the BOP.  This is relevant to the flow rate over time.  Erosion is generically the process by which soil and rock are removed from the Earth's surface by natural processes such as wind or water flow.  The Grand Canyon was formed by the erosion of the rock by the moving water of the Colorado River.

The conclusion of the DNV investigation was that the BSR did close at some point during the early sequence of events in April, but that it did not get a clean cut of the drill pipe running vertically through it.  So it had a ragged end that was caught between the shear ram blades.  The flow of oil and gas from the formation up to the time of the top kill, and then the drilling mud used during the top kill operation (those 12,800 barrels of abrasive "mud"), progressively eroded the metal of the BSR and the bore of the riser adjacent to that ragged end of drill pipe, thereby enlarging the "orifice," thereby increasing the flow rate as the orifice enlarged.

That natural process of erosion began right at the beginning of the leak in April.  Just as a leaky faucet drips more and more with time, the well flowed more and more with time.  That was exactly what was observed as the spill grew.  The Coast Guard's own flow estimates increased over time -- first 1,000 barrels per day, then 5,000 per day, etc.  Mr. Mix's observation that the new flow rate after completing rounds one and two of the top kill was over 15,000 barrels per day was entirely consistent with a lower initial flow rate of oil and gas being present before the operation had begun.  The erosion of the top kill would be expected to increase the flow rate.  If you watched the subsea video feed during the top kill, you probably saw erosion of the riser for yourself.  Against all that evidence, the government is trying to peddle an estimate that the flow rate was 62,000 barrels per day starting on Day One in April.

The motive behind all this governmental misbehavior is clear.  They want to inflict maximum pain upon BP, and they will not let a little thing like the rule of law stop them.  They have dramatically overstated the flow rate, seeking to collect larger fines to pay for a bloated government doing what it does best: spending money it does not have. 

This all reminds me of the way the White House fought against the change in strategy from their favored surface collection of the oil and gas to the more responsible subsea intervention via the "static kill."  Collection of the oil would bolster their case for bigger fines; killing the well would end their ever increasing cash flow.  Ending the emergency took a distant second place to running up the fines, even at the cost of reopening the capping stack and putting even more oil into the Gulf of Mexico.

Vindictiveness and greed seem to be the hallmarks of this administration, not justice or common sense.