On November 15th, the federal government announced criminal charges against three more current or former BP employees for the Deepwater Horizon oil spill. Those men got their chance to enter not guilty pleas on November 28th. Two of the men were actually on the rig during the drilling operations and blowout and fire that resulted in the deaths of 11 men. They are Well Site Leaders Robert Kaluza and Donald Vidrine, the highest ranking BP employees with decision making power on the days leading up to the accident. Given that BP has negotiated a criminal plea deal with the government admitting negligence in a parallel negotiation announced on November 15th , the issue of criminal charges for involuntary manslaughter on the part of these BP's employees is at least arguable. Given that neither of the accused has yet testified in a legitimate legal proceeding, their defense is yet to come. Right now we only have the government's allegations. The third defendant, David Rainey, was charged with lying to Congress about the flow rate of oil spilling from the well after the rig sank.

Developments in the case of Kurt Mix, the first BP employee to have been criminally charged, demonstrate that the government's charges in all these cases merit intense scrutiny and skepticism. In a memorandum filed with the federal court, Mix's attorneys wrote...

Just days ago, on November 15, 2012, the Department of Justice ("DOJ") filed against BP plc a criminal information (the "BP Information") charging BP with, among other things,making false statements about the rate at which oil was flowing or likely flowing from the Macondo Well. Critically relevant to the pending charges against Defendant Kurt Mix, the Assistant Attorney General of the United States -- on behalf of DOJ and its Deepwater Horizon Task Force -- made numerous factual assertions in the BP Information that are directly exculpatory of Kurt Mix, and indeed exonerate him. Thus, in a development both belated and dramatic, the Government has now affirmed what the defense has been saying since the day the Government wrongly and precipitously decided to bring this case: Kurt Mix is the last person who deserves to be sitting in federal court on obstruction of justice charges in connection with the Macondo Incident.

Previously, I wrote blog posts "Was BP's Kurt Mix a Hero or a Criminal?" and "Kurt Mix Counter-Attacks the DoJ" discussing Mr. Mix's responses to the charges against him. Now we have the bizarre government assertion that his email and text messages are in fact in their possession, and prove the charges against Rainey, but were illegally destroyed by Mix! It seems that Assistant Attorney General Lanny Brewer is yet another Obama Administration legal "scholar" of the same caliber as his direct supervisors, Attorney General Eric Holder and President Barack Obama. Growing skepticism about the government's legal scholarship is well represented in  articles by Walter Pavloin in Forbes and David Hammer on WWL-TV.

Note that just as Mr. Mix has managed to mount an effective defense to the charges, it is plausible that the three new defendants may also have valid defenses. With BP having reached agreement with the plaintiff's attorneys for compensation to private sector individuals and companies harmed by the spill, in a settlement now being reviewed by Federal Judge Carl Barbier for final approval, the battle will now shift from responsibility for causing the accident to responsibility for the subsurface control and remediation effort. The key fact is that the government took over supervision of the spill with the appointment by President Obama of Admiral Thad Allen as National Incident Commander on May 1, 2010. Having survived Interior Secretary Ken Salazar's "boot on the neck" using the criminal courts to bully them, we can expect the private sector to fight back vigorously in the forthcoming civil trial. The question of flow rate is sure to be critical. Should the well have been shut in earlier? Was that why Mr. Mix was the first target for criminal prosecution, to discredit his testimony? Now he is likely to be exonerated and then protected by the court against a double jeopardy prosecution by the Executive Branch. Expect further surprises!

I suspect that at some point the outcome will tend to coalesce around the guidance offered by a young widow, Natalie Roshto, who indicated her wish was for a fair economic settlement for the families of the dead (individual settlements have been offered in the $5-6 million range) and a better, safer operating environment for the offshore oil industry going forward.

Stay tuned.