MC&A Newsletter
Volume XII  ::  June 2010
In this month's newsletter, we bring you the latest news on the worst man-made environmental disaster in history -- the Deepwater Horizon explosion and oil spill and the legal ramifications for British Petroleum.  We also give you insight to the Senate Judiciary Committee confirmation hearings of Elena Kagan, a look at how hate crimes are prosecuted in New York, and jury selection issues in the south.

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Midwin Charles

Oil Spill Has BP in Deep Water
TimeOn April 20, 2010, the oil drilling rig Deepwater Horizon exploded in the Gulf of Mexico. British Petroleum (BP) leased Deepwater Horizon from Transocean, an offshore drilling company. The explosion killed 11 Transocean workers and caused an oil leak that has become the largest oil spill and most devastating man-made environmental disaster in U.S. history. Despite continued efforts to stop the gushing oil -- which continues as of this writing -- government experts estimate that as much as 60,000 barrels a day could be leaking into the Gulf of Mexico.

Petroleum companies such as BP drill into offshore wells for oil. To do this, deep-water drilling rigs send their drills through up to 10,000 feet of water and another 30,000 feet through the ocean floor. Clearly, such activity carries the potential for disaster. Accordingly, offshore deep water drilling is regulated by the Minerals Management Service (MMS). MMS is the branch of the Interior Department that sets and enforces safety regulations for oil and gas exploration both on land and offshore.

After the Deepwater Horizon explosion, MMS came under fire for being too lax in its regulations. According to the Wall Street Journal, MMS often deferred to the oil and gas industry regarding decisions on which technology or practices to implement to improve safety. On May 27, 2010, Elizabeth Birnbaum, head of MMS, resigned from her position after only 11 months on the job.

While MMS endures scrutiny of its past practices, BP endures much more. The current estimate on daily civil fines for the leaking oil is approximately $280 million. The U.S. Department of Justice (DOJ) is considering criminal charges against BP and therefore, those numbers will likely continue to grow. Experts have estimated that BP's total legal cost, including criminal and civil fines, could reach $62.9 billion.

The estimated legal costs are staggering because even misdemeanor convictions for violations of environmental laws carry large fines. Under the Alternative Fines Act, the government can request BP to pay twice the gain or loss of an offense, if the company is convicted. A conviction for a misdemeanor is not difficult to obtain -- the government need only make a showing of negligence under the Clean Water Act.

There is also the possibility that the DOJ will pursue more serious criminal charges, but with more serious charges comes a higher standard of proof. According to Mr. Uhlman, the government would have to prove that BP knew that its actions would lead to the oil leak. Andrew Ames, spokesman for the DOJ, stated that they are "looking into possible violations of the law," focusing particularly on the Clean Water Act and the Oil Pollution Act of 1990. The Oil Pollution Act of 1990, which Congress passed in reaction to the Exxon Valdez oil tanker spill in Alaska 21 years ago, requires the oil company deemed responsible for a spill to pay up to $1 billion to clean and repair natural resource damage, and up to $75 million for compensation to victims for lost income. Mr. Ames also said that the government may consider the Migratory Bird Treaty Act and the Endangered Species Act in determining which charges, if any, to bring against BP.

One factor of the DOJ's investigation is BP's 2005 guilty plea for a refinery explosion in Texas City, Texas, which killed 15 people. If taken to trial, this prior criminal charge could be used to support the government's argument that the current disaster is not unique, but the result of a corporate culture that allows tight schedules and budget pressures to increase risks in the drilling process.

While criminal charges appear to be in BP's future, jail time for company executives do not. Many of the laws under consideration by the DOJ for charges against BP do not carry a punishment of incarceration, and for those that do, the government would have to show a direct and intentional connection between the individual and the crime. According to Stanley L. Alpert, former federal prosecutor of environment crimes, decisions contributing to the oil leak likely occurred at a lower level and were not made by top executives.

Nonetheless, criminal convictions are the least of BP's concerns. A criminal indictment alone can seriously impact the company's financial well-being, as it could present BP with the risk of suspension and debarment -- i.e., blacklisted from future sales contracts with the U.S. Considering that BP sold $1.6 billion in products to the U.S. military last year, suspension and debarment would provide a heavy blow to the company's already waning bank account.

Sources:  "With Criminal Charges, Costs to BP Could Soar," by John Schwartz, June 16, 2010, The New York Times; "BP Oil Spill Presents Host of Legal Issues," June 1, 2010, UPI.com; "Fishermen Wait on Docks as Oil Gushes," by James C. McKinely, Jr., June 2, 2010, The New York Times;  "How Bad Could BP Oil Spill Get for the Gulf and the Nation?," by Elizabeth Weise Doyle Rice, June 9, 2010, USA Today; "Head of Minerals Management Service Resigns," by Chris Good, May 27, 2010, www.theatlantic.com; "Deepwater Drilling May Open New Oil Frontiers," by Brian Handwerk, September 11, 2006, National Geographic News; "MMS Director Resigns," by Stephen Power, May 27, 2010, The Wall Street Journal; "Elizabeth Birnbaum, Oil Regulation Head, Resigns," May 27, 2010, CBSNews
Obama's Pick: Will Elena Kagan Reign Supreme?
Elena KaganIn MC&A Newsletter, Volume XI, we featured an article regarding Justice Stevens' announcement that he will retire from the U.S. Supreme Court, and discussed Obama's potential candidates for replacement. One such candidate was Solicitor General and former Harvard Law School dean, Elena Kagan. On May 10, 2010, President Obama nominated Kagan for Supreme Court Justice. Kagan's Senate Judiciary Committee hearings began on June 28, 2010. If confirmed, Kagan would be the youngest justice and the only justice that has not served as a judge currently sitting on the Court, as well as the fourth woman justice in U.S. history.

Although Republicans have the power to delay any vote with a filibuster if all 41 Republicans vote together, there are no signs at this time that they plan to do so. Republicans are expected, however, to criticize Kagan heavily for her attempt to ban military recruiters from Harvard's campus during her time as dean of the law school. Kagan's reasoning for the ban was based on the military's "don't ask, don't tell" policy regarding gays in the military - in a 2003 memo circulated at Harvard, Kagan called the policy "a moral injustice of the first order." Kagan lifted the ban when the Supreme Court upheld a federal law known as the Solomon Amendment, which allowed the government to deny federal grants to schools prohibiting military recruiting on campus.

Further, Republican Senator Jeff Sessions of Alabama has accused Kagan of failing to disclose a $20 million gift to Harvard from Saudi Arabia, a country that considers homosexuality to be a crime, to establish a center for Islamic Studies at Harvard. Sessions found her actions contradictory, stating, "[s]he fought the ability of our own soldiers to access campus resources, but not those who spread the oppressive tenets of Islamic Sharia law." Sessions further accused Kagan of having experience in liberal politics, but not legal practice.

Republicans will also certainly question Kagan on her stance on abortion. In 1997, as White House advisor, Kagan advised President Bill Clinton to support a ban on late-term abortion procedures, except in those cases where the mother's health was at risk. The Washington Post reported on June 11, 2010, that 66% of Republicans want Kagan to publicly voice her opinion on the issue of abortion.

Democrats and Republicans alike hope that Kagan will answer questions about her opinions on past cases and constitutional issues. Supreme Court Justice nominees tend to shy away from such questions, a process Kagan calls a "vapid and hollow charade." In a 1995 book review, Kagan discussed "the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments."

Other information that may provide insight to the type of justice Kagan would be are emails Kagan wrote while an aide to President Clinton, which were released on June 18, 2010 for review. In one 1999 email, Kagan wrote she was the "biggest fan" of proposed legislation protecting religious freedom from government intrusion, but advised against then Vice President Al Gore's endorsement of the legislation for fear of a "gay/lesbian firestorm," and further warned that if the bill was modified to benefit gays and lesbians, there would be "a religious groups firestorm."

The glimpse into Kagan's personality provided by the emails is not expected to harm her chances for winning the vote for Supreme Court Justice. Ms. Kagan is well on her way to becoming the fourth woman Supreme Court Justice.

Sources: "Senate Republican Accuses Kagan of Staying Silent on Saudi Gift to Harvard," June 16, 2010, FOXNews.com; "Obama Picks Elena Kagan for Supreme Court," by the Associate Press, May 10, 2010, msnbc.com; "Most Americans Support Kagan's Nomination to Supreme Court, Poll Finds," by John Cohen, June 11, 2010, The Washington Post; "Clinton Library Releases Kagan E-mails," by James Oliphant, June 19, 2010, The LA Times; "In Clinton-Era Emails, Glimpses of Kagan's Personality," by Jess Bravin, June 18, 2010, The Wall Street Journal
Jury Selection in the South
juryA new study conducted by the Equal Justice Initiative, a non-profit human rights and legal services organization, revealed that the practice of excluding blacks and other minorities from juries is widespread in the South.  Despite the fact that excluding a juror based on race has been illegal since 1875, the study found an overwhelming number of all-white juries exist in the South.

The study looked at eight Southern states, namely, Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee.  In Alabama, the study showed that since 1987, 25 death penalty trials involved racially discriminatory jury selection, with some counties striking more than 75 percent of black jury pool members from death penalty cases. And in North Carolina, at least 26 current death row defendants were convicted by all white juries.

The process of jury selection allows potential jurors to be dismissed for various reasons. First, a juror can be dismissed for cause, such as a scheduling conflict, a relationship to the defendant, or in a death penalty case, opposition to the death penalty. After jurors are struck for cause, the attorneys have what are called peremptory strikes, which allows an attorney to dismiss a juror whom the attorney feels would not be a proper fit for the case at bar. The number of peremptory strikes an attorney has varies by state, but is usually enough for an attorney to strike all minorities from the jury.

The 1986 Supreme Court case Batson v. Kentucky, held that an attorney may not strike any juror on the basis of race. Where an attorney shows a pattern of discrimination in her peremptory strikes, the lawyer must provide the court with non-racial reasons for those strikes. Such reasons, however, do not have to persuasive. This leaves a major loophole for attorneys looking to eliminate minorities from their jury panel.

As a result of this loophole, Robert Broussard, a district attorney in Madison County, Alabama, struck 11 of 14 black potential jurors in a capital murder case for what seems to be no reason at all. Broussard claimed one juror seemed "arrogant" and "pretty vocal." In another, he "detected hostility." Broussard also questioned the "sophistication" of the following black jurors: a former Army sergeant, a forklift operator who completed three years of college education, an assembly line worker and a retired Department of Defense program analyst.

Reasons such as those Broussard gave for striking minority jurors seem ludicrous, but because of the standard set out in Batson, it is extremely difficult to obtain a reversal on the basis of using discriminatory practices in jury selection. In fact, there has never been a successful Batson reversal in Tennessee or North Carolina. In Jefferson Parish, Louisiana, first assistant district attorney Stephen Wimberly said that since 1997, only two cases have been reversed for discrimination.

However, some courts are starting to recognize that discrimination in jury selection is still a problem within the justice system - particularly in the south. The Mississippi Supreme Court reversed the case of Curtis Flowers, a black man who was sentenced to death by a jury comprised of 11 whites and 1 black for killing four furniture store employees. The prosecutors in Flowers' case used all 15 of their peremptory strikes to eliminate potential black jurors in a county where 45 percent of the population is black. In making its decision, the court recognized that "racially motivated jury selection is still prevalent after Batson."

Hopefully other courts in the south will start to take notice of this problem, especially given the fact that many studies have found that racially diverse juries are more effective. Evidence shows that they take more time in deliberation and make fewer mistakes in judgment. Fewer mistakes, if any should be a priority for the justice system, since in the past thirty years, over 130 people on death row were found to be innocent of the crimes for which they were convicted.

Sources: "Study Finds Blacks Blocked From Southern Juries," by Shaila Dewan, June 1, 2010, The New York Times; " 'Racism' in US Jury Selection," June 7, 2010, www.news24.com
New York Prosecutors Changing the Meaning Of "Hate"
elderyIn Queens, New York, prosecutors have found a new way to deal with criminals who prey on the elderly: charge them with a hate crime. By using this approach, prosecutors are able to obtain tougher sentences. For example, theft of less than $1 million does not generally carry any prison sentence, whereas if the theft is classified as a hate crime, the defendant could face up to 25 years in prison.

The public generally knows hate crimes to be those born from a hatred towards members of various minority groups. The term "hate crime" entered the U.S. vocabulary during the 1980's when various hate groups began committing bias-related crimes. The Federal Bureau of Investigation classifies hate crimes as "crimes of hatred and prejudice."

Criminals who prey on the elderly do not do so out of an animus; in fact, according to Queens assistant district attorney Kristen Kane, "they love the elderly -- this is their source of wealth." Queens prosecutors, who began charging these criminals with hate crimes in 2005, are able to bring such charges thanks to the ambiguous language of New York's hate crime law - Criminal Law Section 485. Section 485 states that a hate crime is one committed against a person "because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person." Accordingly, criminals who seek out the elderly because they believe older people are more easily taken advantage of, fall within the ambit of Section 485.

This new practice started with Shirley Miller, who conned four elderly men into giving her a total of $500,000. Kane, who runs an elder fraud unit with the Queens District Attorney's Office, was frustrated that in the past, defendants who committed crimes against the elderly served light sentences with very little jail time.  Miller, faced with the much more serious charge of a hate crime, pleaded guilty and served four months behind bars, on top of paying $175,000 in restitution. Had Miller not paid the restitution, she would have faced up to three years in prison. In cases that have followed since Miller, defendants continue to face harsh penalties. For example, Wando Delmaro received a 10-year prison sentence after being charged with the hate crime of posing as a water company employee to distract the elderly while accomplices burglarized their homes.

Critics are concerned that using hate crime laws for crimes other than those born out of hatred will dilute the power of hate crime laws. According to Steven Freeman, legal affairs director of the Anti-Defamation League, the purpose of such laws is to provide harsher penalties for crimes that inflict additional fear on already marginalized groups such as ethnic and religious minorities, or gays.

Kane's strategy is yet to be tested by the appellate courts, since most of the people charged pleaded guilty, thereby waiving their right to appeal. The legislative narrative that accompanies Section 485 indicates the legislature's intent for the law to focus on hate: "crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs." Despite the apparent legislative intent, Queens trial judges seem to share Kane's sentiment, allowing use of the hate crime law despite defense lawyers' arguments against it. In addition, Kathleen B. Hogan, president of the State District Attorneys Association, says that she would suggest prosecutors' use of hate crime laws in cases, such as those that single out the elderly, to the group's committee on best practices. While the final verdict on this new use of hate crimes laws rests with the appellate courts, it appears to be a trend that is here to stay.

Sources: www.fbi.gov/hq/cid/civilrights/hate; "A Novel Twist for Prosecution of Hate Crimes," by Anne Barnard, June 22, 2010, The New York Times; "Elder Fraud Charged as Hate Crime," June 23, 2010, www.upi.com; "Queens Prosecutors Don't Require 'Hate' Showing in New Use of Hate Crimes Law," by Debra Cassens Weiss, June 22, 2010, www.abajournal.com
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