BP. Those letters together cause many of us in the Tampa Bay area to shudder at the thought of the ineptitude in dealing with the oil spill in the Gulf of Mexico.
Business owners suffered, beach goers were scared away, fishermen were affected, and as a whole, the Tampa Bay area economy continues to suffer to this day.
Adding insult to injury, the Federal government has arrested BP engineer Kurt Mix on charges of obstruction of justice for deleting more than 300 text messages. It is alleged those text messages told that a much greater amount of oil poured into the Gulf of Mexico than was reported by BP, and that the oil giant's feeble attempts to control the spill were failing.
Unfortunately, this is something we all knew. It is further alleged that Mix deleted approximately 200 messages to a BP supervisor in October of 2010 and then deleted 100 more the following year, despite receiving numerous legal notices forbidding the destruction of such evidence and to preserve it. At first blush, the allegations are sickening considering the "feel good" propaganda pumped across our televisions and radios by BP in an effort to mitigate damage not to our coast, but to their bottom line.
If convicted, Mix could face up to 20 years in prison and a $250,000 fine. Depending on when and to whom the notices to preserve this evidence were sent, Mix may have a plausible defense. If Mix did not receive the notices sent from the US government and therefore did not read them, he may not have been on actual notice to not delete his text messages. For argument's sake, if the messages went to a supervisor who did not relay the order to Mix, he could defend on not having the mental state of "knowingly" deleting text messages with the "intent" of destroying evidence. In other words, without seeing the notice or hearing news of the same, when he deleted the messages he wasn't knowingly covering up an investigation by intentionally destroying evidence, but rather was merely deleting text messages as people do every day.
How often do we mindlessly delete text messages in an effort to clean out our phones and then realize later that we deleted a name or number that we needed?
As Federal cases come, the evidence against a defendant is often so heavily tipped in favor of the United States that a trial would be futile. Depending on what admissible evidence the United States has against Mix will determine whether my defense theory would even be plausible.
As so often technical attorneys forget, our system is often based on the mind of a reasonable juror. Nix's largest hurdle may be finding a jury in New Orleans that isn't so angry at BP and all their minions that they will want a head to roll, period, end of story. That isn't to say the good people of the Big Easy aren't fair and just people, but even this attorney couldn't blame them if their emotions are so strung out that they couldn't look past the damage BP has caused.
All in all, Mix now has a problem. BP has a bigger one. The likelihood of a forgiving jury in New Orleans is slim. The likelihood of convincing any jury that Mix was absent minded in deleting these texts is tiny. Mix should have known that deleting those messages could create a very large problem for him and yet he did it anyway. However, if in fact that is the case, were I representing Mix, we would be calling to order a meeting with the Feds, asking for immunity or a slap on the wrist diversion or probation sentence, and giving them so much information against BP that BP may consider digging a hole near the oil breach and hiding out for a while. Mix likely carries the key to his own freedom and he will no doubt use it. BP may be facing a tougher spill to cap than they had before.
Jason Mayberry is an attorney located in Clearwater and practicing throughout the Tampa Bay area. His practice focuses on Federal and State criminal defense, personal injury and medical malpractice, and family law. Call 727-771-3847 or visit www.mayberryfirm.com.