Judge finds no violations of Victims' Rights Act in BP agreement

Victims of the deadly 2005 explosion at the BP refinery in Texas City are trying to convince a federal judge that she should reject the company's guilty plea to criminal violations, but so far all the judge has rejected is part of their argument.

U.S. District Judge Lee Rosenthal of the Southern District of Texas-Houston Division presided over a Feb. 4 hearing in which BP pleaded guilty to violating the Clean Air Act on March 23, 2005, when a unit at its Texas City refinery exploded.

Fifteen workers were killed and hundreds were injured in the blast. Victims and families spoke at the hearing urging Rosenthal not to accept the plea agreement, which included a $50 million fine and three years on probation.

The victims argued that the fine was too low, the probation conditions were too lenient and that certain requirements of the Crime Victims' Rights Act had been violated.

In an opinion issued Feb. 21, Rosenthal found that there were no violations of the CVRA, but her opinion has not addressed the other arguments and she has not made a final ruling to accept or reject the plea agreement.

Victims complained that the government counsel had ignored their attorney's letters regarding how the $50 million fine was determined, which they said is a violation of their CVRA right to confer with the government attorney.

Rosenthal wrote that she found few cases addressing the conferral provision. However she cited, In re W.R. Huff Asset Management Co., in which an appellate court stated that "nothing in the CVRA requires the government to seek approval from crime victims before negotiating or entering into a settlement agreement."

The CVRA requires "only that the court provide victims with an opportunity to be heard concerning a proposed settlement agreement."

As Rosenthal interprets Huff, the "right to confer is a right to obtain and provide information and to express opinions," not to give the victims a right to approve or disapprove a proposed plea in advance or to participate in the plea negotiations.

She found that records show that the government had been in communication with many of those affected by the explosion well in advance of any plea negotiations and that the government knew that the families of those who died, the individuals injured in the explosion, their families and others affected by the explosion had strong views that BP Products should receive the maximum available punishment.

In addition, the victims have been provided a full opportunity to express their views on the proposed plea in court, including a hearing Feb. 4 in which victims were able to appear before Rosenthal and tell the judge their personal stories relating to the blast.

The victims want the court to order a "town meeting" as a way to remedy the alleged CVRA violations, and Rosenthal wrote that "the process that has been followed is an orderly approach to such a town meeting, in the context of court hearings."

Victims argued that the procedure used "deprived them of the opportunity to provide the government with information about their losses, which the government could have used to determine the fine amount." Rosenthal wrote that was not a basis for her to reject the plea agreement.

She did state that the government should have responded to the attorney's letters regarding how the fine was calculated "as a matter of good practice." But again, she said the government's failure to answer the letters did not support rejection of the agreement.

Monday, Feb. 25, David Perry, attorney for Ralph and Alisa Dean and other victims, wrote that the victims were "disappointed that you have ruled against us on the CVRA issues," and that he is now preparing to file a Petition for a Writ of Mandamus in the Fifth Circuit Court of Appeals.

BP has already settled thousands of civil cases to the tune of more than $1.6 billion.

Case No. 4:07-cr-434