The Deepwater Horizon oil spill was a tragedy. The explosion was deadly and the resulting environmental harm was devastating. The government’s response was typical: let’s find some people to prosecute.
One of the unlucky targets of the government’s focus was a BP engineer named Kurt Mix. He wasn’t the head of operations on the drilling platform, nor was he the person who oversaw any faulty construction of the platform. Nope, he was just an engineer who flew to the site to help calculate the number of gallons of oil leaking from the well.
Mr. Mix was convicted of one count of obstruction of justice for deleting a few text messages related to the spill. However, the Fifth Circuit recently reversed his conviction because there was evidence that one of the jurors had been exposed to extrinsic evidence about the trial during deliberations.
The amount of extrinsic evidence was slight but the court nonetheless concluded that it was sufficient to taint the verdict. For now, Mr. Mix is the victor but it appears that the government does not intend to go gently into that good night. The retrial is currently set for November 2015.
Deleted Text Messages
The Deepwater spill occurred on April 10, 2010. BP immediately began to try to stop the leak and the flow of oil into the water. One of the plans was called “Top Kill” and required that the number of barrels of oil per day (BOPD) be less than 15,000.
Mr. Mix was assigned the task of producing flow rate models to estimate BOPD. His initial models were very high, around 100,000 BOPD. The Coast Guard estimated it to be 5,000 BOPD.
During the period when BP was trying to stop the flow of oil, it issued several litigation hold notices to employees, including Mr. Mix. Those litigation hold notices instructed everyone to keep all documents related to the accident and oil spill.
Mr. Mix apparently ignored those hold notices and deleted a string of text messages between himself and his supervisor about flow rate estimates. The government was unable to obtain most of the text messages.
At trial, the government argued that Mr. Mix deleted the text messages to impede the grand jury investigation of the spill. Mr. Mix argued that he sought only to delete a photograph in a text that his supervisor had sent him but had mistakenly deleted the entire string of text messages instead. He denied any corrupt intent. (I’ve written before about the intent necessary to prove obstruction of justice; for once, it’s a high burden on the government.)
Initially, the jury deadlocked. But the court gave an Allen instruction. The inequity of an Allen instruction is a topic for another day, but it is an instruction to a deadlocked jury saying in very strong terms that it should reach a unanimous verdict. It almost always leads to a guilty verdict, in my experience. A deadlocked jury means that one or two jurors are holding out. When the court orders them to reach a verdict using an Allen instruction, the holdouts usually buckle.
Mr. Mix lost. He was convicted of one count of obstruction of justice.
What the Juror Overheard
After the trial, defense counsel contacted the jurors and found out some distressing information.
Sometime after the Allen instruction but before the verdict, one of the jurors told the others that a conversation that she overheard in the elevator convinced her that a conviction was appropriate. Apparently, the conversation involved an assertion that other BP executives were going to be convicted. While the juror didn’t reveal the content of the conversation to the other jurors, the jurors also did not report this information to the court.
The defense moved for a new trial based on this information, and the district court granted the motion. The government appealed.
The Defense Met its Burden by Showing Prejudice Was Likely
It is well established that the Sixth Amendment protects against the disclosure of any extrinsic prejudicial information to the jury.
In accordance with United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998), in order for a new trial to be granted, the defense must first show that the extrinsic evidence could have potentially prejudiced the jury. If he meets that burden, then the government must prove that there was no prejudice.
Ultimately, Mr. Mix was able to show that not only was the juror who overheard the elevator conversation likely prejudiced, but that the rest of the jury may have been prejudiced as well.
With regards to the first juror, the court of appeals found that it was likely that learning that other BP officials were being convicted could have increased Mr. Mix’s motive to delete the text messages. When the juror told her peers that extrinsic information led her to believe that conviction was proper, an otherwise deadlocked jury came back quickly with a guilty verdict. The court found this to be sufficient evidence of prejudice:
A juror’s reference to non-record evidence that directly pertains to the particular case being considered is by definition an injection of extrinsic information, even if it is fabricated.
The Government Failed to Show Lack of Prejudice
The government made several unsuccessful arguments in an attempt to overcome its burden. First, it argued that the elevator conversation was cumulative evidence because there had been evidence of other Deepwater Horizon convictions.
The court disagreed. Although there was some talk of other cases surrounding the accident, there was not enough to show that there were criminal prosecutions. It was perfectly reasonable for the jury to question whether the cases were, for example, criminal or civil.
The government’s next argument was that the jury instruction that the jurors should ignore any information that was extrinsic cured any potential for prejudice. However, the appellate court found that the jurors had disregarded its instructions by not bringing the extrinsic evidence to the court’s attention in the first place. Thus, the court did not have any confidence that the jury followed the jury instructions.
Not only had the jurors not brought the elevator conversation to the court’s attention but they had also discussed the deliberations with defense counsel without judicial permission.
Finally, the government contended that the weight of the evidence against Mix was so heavy that the extrinsic information did not influence the conviction.
This may be my favorite part of the opinion. The court found that the government had not raised this argument below and so it was forfeited. The government relies so often on a defendant’s supposed forfeiture of arguments at trial that it is sweet revenge to see the government hoisted on its own petard.
The court also reasoned that the case “was not one sided” and described the compelling evidence presented by Mr. Mix of his innocence.
The court of appeals also rejected the government’s argument that the court below had failed to follow the three-factor test for harmlessness in United States v. Ruggiero. The three factors are:
 the content of the extrinsic material,  the manner in which it came to the jury’s attention, and  the weight of the evidence against the defendant.
Once again, the court concluded that the government had waived this argument by not raising it below. (And, once again, this holding should make every defense lawyer happy.)
Quick Side Note about Contacting Jurors
Defense counsel did not seek leave of court to contact the jurors. The Fifth Circuit explained that the district court had noted that defense counsel “acted improperly and perhaps even unethically, in contacting the jurors.”
This is a good reminder to check the local rules—court rules and ethics rules—about contacting jurors. In some jurisdictions, you do not need any permission to do so; in others you do.
Keep Wearing the White Hat
The prosecution of Mr. Mix always had a vaguely Orwellian feel about it. The government wanted to prosecute someone—anyone—for the accident. That is understandable. But to go after a BP engineer for deleting a single string of text messages, when he had nothing to do with the accident itself, smacks of desperation.
That’s not how I want my government deciding whether to prosecute someone. Congratulations to Mr. Mix and his counsel at Ropes & Gray on two big wins. Let’s hope the third time’s a charm, and they can beat these absurd charges once and for all.