Kyle Barnett Mar. 9, 2015, 8:01am


NEW ORLEANS – Federal prosecutors have been granted a hearing in the appeal of the criminal case of a BP engineer whose conviction for obstruction of justice was thrown out when evidence of a tainted jury surfaced following the trial.


In December 2013, BP engineer Kurt Mix was convicted of one count of obstruction of justice for deleting text messages prosecutors said were related to his response to the well blowout following the explosion and sinking of the Deepwater Horizon oil rig. U.S. District Judge Stanwood Duval overturned the conviction when Mix's lawyers presented evidence that the jury had been tainted.

The evidence arose when Mix's lawyers polled jurors following the guilty verdict. According to filings in the case, jurors revealed that the panel's forewoman relayed a conversation she overheard in an elevator, in which unknown people suggested more indictments of BP employees were looming, that was used to convict Mix. Without that information it appears the case against Mix would have resulted in a hung jury. According to appeals court filings, the jury was deadlocked for two days when the forewoman told the rest of the panel about the overheard elevator conversation. The jury voted to convict two hours later.

Mix, who faced up to 20 years in prison and a $250,000 fine, was awaiting sentencing when the conviction was overturned and he was granted a new trial. However, the U.S. government appealed Duval's ruling and was only recently granted a hearing for next month.

In addition to the tainted jury, the case has proven troublesome on other levels as well. Mix's lawyers filed a motion to have Duval removed from the proceedings due to an inherent conflict of interest. According to court filings, Duval filed for oil spill related punitive damages for a beach house he owns in Grand Isle, La. Duval’s damage claim against BP was allegedly not revealed to attorneys involved in the case. Shortly after Duval refused to step aside in the case he threw out Mix's conviction.

Judge Duval is also the father of David Duval, a former Deepwater Horizon claims center executive who resigned after it was determined he improperly provided claims information to the family's law practice–a law practice that Judge Duval once headed.

In the motion to appeal the overturning of Mix’s conviction, federal prosecutors say that the overheard elevator conversation was irrelevant to Mix’s conviction. However, Mix's lawyers disagreed with this assessment arguing that Mix should never have been convicted in the first place, since prosecutors never established what they promised–proof of a broad conspiracy to conceal oil spill-related evidence from investigators.

“The prospect of other indictments would have lent greater credence to the government’s theory of the case—that Mr. Mix was part of a criminal scheme at BP to hide non-public knowledge of higher flow-rate information,” Mix’s attorneys said in an appeals court filing.

In fact, Mix's lawyers argued that oil spill investigators had ample time to examine the text messages on the engineer's iPhone before they were deleted months after the well was capped. Mix's only shortcoming, according to his legal defense team, was a poor understanding of smartphone technology which resulted in the accidental deletion of an entire string of text messages when he had only been trying to delete a personal photograph that had been forwarded to him.

Of the 331 deleted text messages in question, investigators later retrieved 314 of them. In their response to the prosecution’s appeal, Mix’s defense team said the prospect that 17  missing text messages would provide relevant information regarding oil flow rate was unlikely. Defense lawyers also pointed out that Mix's supervisor, Jonathan Sprague, was also accused of deleting the unrecovered texts, but was not indicted.

During the oil spill, Mix was one of the people responsible for estimating the outflow of the oil coming out of the well in addition to designing a relief well that would stop the oil spill. He also assisted in the “top kill” operation–a failed attempt to shoot debris into the gushing oil well to plug it.

Despite playing a pivotal role in bringing the oil spill to a stop after 87 days, prosecutors claimed Mix conspired to limit information regarding how much oil spilled during the disaster–a figure that would later be used to calculate the federal fines BP would ultimately pay. However, even if the deleted data had been available it is unlikely to have made a difference. U.S. District Carl Barbier, who is assessing the fines BP will pay, has said the total amount of oil spilled in the Deepwater Horizon incident is unknowable.

Although Mix preserved more than 10,000 paper and electronic documents for investigators, including damning oil spill flow rate hypotheticals far higher than what BP says were spilled in the incident, prosecutors went ahead with charging him with two counts of obstruction.

The revelation of the tainted jury by Mix’s defense team appears to have influenced a local rule change. In a court filing, Duval expressed his concern about the “appropriateness of lawyers interviewing individual jurors” without the court’s permission after the defense presented their findings concerning the tainted jury. After Mix's conviction was thrown out, the U.S. District Court of the Eastern District of Louisiana imposed a rule that bans lawyers from polling jurors following verdicts without court approval and oversight.

The attempted prosecution of Mix by the federal government by itself has also been a source of criticism. Earlier this year, white-collar crime expert Walter Pavlo wrote a piece in Forbes magazine that accused the U.S. Department of Justice of engaging in the “overprosecution” of Mix. In the article Pavlo accused prosecutors of overreach in a misguided attempt to find a scapegoat for the disaster.

The appeal is currently scheduled to be heard by the U.S. Court of Appeals for the Fifth Circuit on April 27.

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