A former BP Plc (BP/) engineer charged with destroying evidence sought for a U.S probe of the 2010 Gulf of Mexico oil spill said a “third party” is withholding information that could clear him, according to court filings.
Lawyers for Kurt Mix, who worked on internal BP efforts to estimate the amount of oil leaking from the Deepwater Horizon well, said an unidentified third party has refused to allow them to hand over evidence to prosecutors that “eviscerates” the charges against the engineer, according to the filing today in federal court in New Orleans.
The evidence is key to Mix’s defense “and capable of fully exonerating him,” the engineer’s lawyers said in the filing. The lawyers are asking a judge to allow them to disclose the information and to use it at trial if the government proceeds with the case.
The U.S. Justice Department, which began investigating the incident in June 2010 after a fatal explosion ripped through the well and caused the largest offshore oil spill in U.S. history, said in April it was continuing to consider whether to file more criminal charges over the spill. The charges against Mix are likely to be followed by others, U.S. Attorney General Eric Holder said last month.
A federal grand jury had been investigating the spill estimates, Federal Bureau of Investigation Special Agent Barbara O’Donnell said in a sworn statement filed in the Mix case last month.
Mix’s lawyers contend that because the third party hasn’t waived attorney/client privilege over the evidence, they haven’t been able to make it available to prosecutors.
“The government was unaware of this exculpatory information when it chose to indict defendant Mix and it remains unaware of it today,” according to the filing.
Alisa Finelli, a Justice Department spokeswoman, and Scott Dean, a BP spokesman, both declined to comment on the filing by Mix’s lawyers.
BP agreed in March to pay an estimated $7.8 billion to resolve most private plaintiffs’ claims for economic loss, property damage and spill and cleanup-related injuries. The settlement establishes two separate classes, one for economic loss and the other for physical injuries related to the spill or the cleanup.
U.S. District Judge Carl Barbier is set to decide in November whether to give final approval to the accord. Barbier has set a Jan. 14, 2013 trial to decide liability for the spill.
The blowout and explosion on the Deepwater Horizon drilling rig killed 11 workers and started millions of barrels of crude leaking into the Gulf. The accident prompted hundreds of lawsuits against BP; Transocean Ltd. (RIG), the Vernier, Switzerland- based owner and operator of the rig; and Halliburton Co. (HAL), which provided cementing services.
Mix is accused of obstructing justice by deleting a string of more than 200 text messages he exchanged with a man identified in court filings as a “contractor” that may show the company knew a procedure to kill the leak was likely to fail, at least in part, because of the volume of oil pouring out of the well.
Court filings in the criminal case indicate that BP’s internal leak estimates showed the Macondo well was spewing out 15,000 barrels a day, which was a higher rate than the company publicly acknowledged at the time.
Set of Texts
Mix’s lawyers said they obtained a set of the texts from the unnamed third party that show Mix didn’t intend to hide information by deleting the messages.
“The evidence establishes that, at the very same time that the government alleges Mix was corruptly deleting text messages, he was being entirely forthcoming in answering questions and providing detailed information about the incident,” the engineer’s lawyers said in the filing.
Mix’s defense attorneys are arguing prosecutors didn’t gather all the necessary evidence before deciding to charge the former BP employee, David Uhlmann, a former chief of the Justice Department’s environmental crimes section, said in a telephone interview today.
“I don’t put too much stock in it,” said Uhlmann, who now teaches law at the University of Michigan in Ann Arbor. “I don’t think it’s a fair criticism to say the government didn’t look before it jumped in this case.”
In court filings today, Mix’s lawyers asked U.S. District Judge Jane Triche Milazzo in New Orleans to hold a June 7 hearing on whether the privileged information about the deleted texts can be disclosed to prosecutors.
The case is U.S. v. Mix, 12-cr-00171, U.S. District Court, Eastern District of Louisiana (New Orleans).
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