Professionalism/The Over Prosecution of Kurt Mix

Introduction
On April 22, 2010 the BP-operated Deepwater Horizon oil rig exploded in the Gulf of Mexico. The explosion killed 11 men who worked on the rig, and the ensuing oil spill caused one of the worst environmental disasters in history. Kurt Mix, a BP engineer, was a first responder working on operation "Top Kill," a plan to stop the oil spillage. During the operation, Mix discovered that the amount of oil leaking was almost three times greater than the original estimate, and that the current plan to stop the leak would likely be unsuccessful. He relayed this to his supervisor through a series of text messages. The Department of Justice (DOJ) formed the Deepwater Horizon Task Force, which launched an investigation to identify the spill's cause. Charges were brought against two of the rig's supervisors, an executive who oversaw the project, and Mix. Despite providing the prosecution with a vast amount of information, Mix was charged with felony obstruction of justice for deleting personal text messages, which the prosecution suspected included information about the spill. Mix faced up to 40 years in prison; his prosecution lasted for over three years and cost the government millions of dollars. The DOJ eventually reduced Mix's charges to a misdemeanor, for which Mix was found guilty and sentenced to six months probation. Mix has been viewed by some as a scapegoat and his prosecution reflects a possible misuse of prosecutorial discretion.

Case Overview
As a first responder, Mix worked on operation Top Kill, an effort to stop the oil spillage. The DOJ charged Mix with two counts of obstruction of justice for deleting a stream of about 200 text messages between him and his supervisor. The most significant information in the text messages was estimates of how much oil was leaking. Despite Mix's efforts to forensically recover the messages (most were recovered) and his preservation of logs, emails, and journals that contained relevant information, the prosecution still suspected that Mix deleted the texts in a deliberate effort to conceal the amount of oil leaking as a result of the explosion. Operation Top Kill would likely not have been successful at the higher rate of flow that Mix observed. The prosecution lasted over three years. One of the obstruction charges was dropped, and the other was appealed based on jury misconduct. Eventually, the remaining obstruction charge was reduced to a misdemeanor for Mix failing to receive proper approval from BP before deleting the text messages.

Over Prosecution
From its inception, the Deepwater Horizon Task Force was flawed. The task force was headed by the Department of Justice's Criminal Division, an unusual decision because most oil spill cases are prosecuted by the Environment and Natural Resources Division. David Uhlmann, law professor at the University of Michigan, recognizes the impact of this decision: "The Criminal Division specializes in fraud cases, where individuals often are taking advantage of the company...or misleading the public about the company's financial health for their benefit. But in environmental crimes, the individuals are never doing it for themselves. Their motive is to save the company time and money, which raises different issues for the exercise of prosecutorial discretion." The task force targeted Mix, seeing him as a source of the controversial information about the flow rate of the spill.

The prosecutors may have been under pressure from their superiors to obtain a conviction, and may have pursued convictions instead of justice. Attorney General Eric Holder summed up the tone of the entire BP investigation when he announced BP's guilty plea: "This marks both the single largest criminal fine – more than $1.25 billion – and the single largest total criminal resolution – $4 billion – in the history of the United States. It stands as a testament to the hard work of countless investigators, attorneys, support staff members, and other personnel – from the Deepwater Horizon Task Force." The DOJ saw convictions and settlements as badges of honor. Noting that this was a "major achievement" indicates that it was a goal to make the BP resolution as large as possible rather than to find true justice. We see the prosecution's behavior reinforced by Acting Assistant Attorney General Mythili Raman, who commended their "dedication and tenacity," stating “This prosecution shows the commitment of the Justice Department to holding accountable those who interfere with the administration of justice.”

A mandate to obtain convictions coming from upper ranks of the federal government may have been why the task force pursued Mix so relentlessly. Prosecutors, potentially to protect their livelihood or advance their careers, engaged in conduct that appears to have been focused more on obtaining a conviction rather than obtaining justice. The way prosecutors moved forward was representative of wanting a conviction regardless of truth, and crossed the line into prosecutorial misconduct. Forbes reports three such incidents: writing of an interview with Mix's manager, "he told investigators that the messages were just banter among friends...no cover-up," but "the details of that interview, at the behest of prosecutors, were not allowed to be submitted"; content of since-recovered text messages were not provided by prosecution; prosecutors angled to hide that Mix provided over ten thousand documents to the government, in an effort to cooperate. Prosecutors did not let Mix prove his innocence.

We can use this example of misconduct as a lesson about interactions between managers and the professionals who they oversee. Managers should be careful to accurately express their values and expectations, and they should make certain to not confuse means with ends. For example, in the Mix case, it appears that conviction (a means to achieve justice) was confused with justice (the end). Employees are held accountable by their managers and usually want to stay in good standing. Misaligned motives can have negative consequences, one such being coercion into unethical behavior.

In no way does this absolve employees of the responsibility to ethically perform their jobs. Professionals are given the freedom to make decisions, and the duty of dealing with the consequences which may come as a result. When a professional feels self-doubt or has a shaky moral compass, influence from superiors may corrupt his or her judgement.

Individual Liability
The Mix case is an example of the way that some seek to make the individual liable for the mistakes of the corporation. Though BP paid a record amount of fines, the company is still alive and well today. Mix defined himself as a scapegoat, claiming "I naïvely believed that the task force simply wanted the truth. I was certain that once it had the full record of my actions, everything would be fine, and the trauma my family and I had gone through would end." Criminal defense attorney Susan Bozorgi contends: "It is hard to reconcile an individual’s criminal liability when considered in light of a company’s ability to resolve its criminal liability by the payment of fines, regardless of how big. These cases, if tried, will certainly test our society’s view on individual vs. corporate criminal liability. The BP Oil spill is arguably the largest environmental crisis in the history of this country, and the fact that only four individuals are facing justice relating to that disaster while BP pays $4 billion in criminal fines seems oddly out of balance." In light of such a large environmental crisis, the justice system wanted to hold individuals accountable. In the context of the entire case against BP, the task force pursued Mix aggressively; instead of seeing the systematic failures in BP's operation, they targeted an engineer. It seemed that the DOJ, and perhaps society in general, saw they could only reconcile the disaster with a conviction.

Lessons
Thomas Jefferson wrote that “The most sacred of the duties of government [is] to do equal and impartial justice to all its citizens.” The DOJ features this quote on their website and claims that it is their "guiding principle". But is this truly the guiding principle of the DOJ?

Consider the prosecution of Kurt Mix in contrast with the treatment of BP's CEO and the company itself. Mix had no connection to the cause of the disaster. He was brought in after the explosion, and, by all accounts, worked diligently to stop the spillage. In return, his life was ruined by the DOJ's aggressive and lengthy prosecution, which, considering the case's eventual outcome, appears to have been nearly baseless. On the other hand, CEO of BP Tony Hayward, who can be viewed as a chief beneficiary and accountable party of BP's underwater drilling, was not prosecuted. Hayward was dismissed and retained an $18 million pension. As for BP, while it paid record fines, its stock market value is now more than it was in the months following the explosion and it remains one of the world's leading oil companies. There is an imbalance between how the DOJ's prosecution affected Mix (especially if the potential charges were realized) and how it affected the more influential parties connected with the disaster.

Could it be that the DOJ's manifest function is to do equal and impartial justice for all, while sometimes its latent function is to protect wealthy and powerful parties, winning unjust convictions to tout as justice?

The Department of Justice's Office of Professional Responsibility found that, between 2002 and 2013, there were over 400 cases of recklessness or intentional misconduct by members of the DOJ. These include 20 instances in which DOJ attorneys intentionally misled courts, and 29 allegations in which they failed to provide exculpatory information for defendants. The DOJ did not release the names of the attorneys involved or the defendants who were affected; this is a way to shed accountability and therefore reinforce overaggressive prosecutorial practices.

Consider the DOJ's prosecution of Kurt Mix in contrast with the DOJ's treatment of the executives who led the big banks during the years leading up to the 2008 financial crisis. Mix found himself in a fight for his freedom; on the other hand, the DOJ did not prosecute the wealthy banking executives, even amid whistleblower reports of troublesome behavior. Instead, the DOJ elected to fine the banks, effectively punishing shareholders instead of the individuals who oversaw or made the hazardous decisions that hurt the world economy. The comparison with Mix may at first appear to be a stretch, but consider the DOJ's aggressive prosecution over a string of text messages compared to its nearly nonexistent prosecution of the leaders of institutions which caused a global economic crisis. If Mix was a wealthy executive, would he have faced the same prosecution?

In Plato's Republic, the Ring of Gyges allows its wearer to become invisible. If one can become invisible, he or she can act immorally without punishment. The story asks whether people act morally due to their nature, or due to being held accountable by those around them. Could it be that, today, the confluence of money with the power of government has become a Ring of Gyges? It appears that the whole world watches while, with enough money, immoral corporate actors become invisible to the hands of justice.