What Can You Learn from the Gulf Oil Spill?

The recent oil spill has raised huge environmental issues and a lot of speculation about legal consequences from environmentalists and criminal attorneys alike

According to news reports, it is just a matter of time until Federal investigators file criminal charges against one or more of the companies involved in the Gulf of Mexico spill. That means that penalties might very well exceed the current $75 million cap on civil liability. There is no cap on criminal penalties. Thus the consequences for the companies and their officials can be enormous, as criminal lawyers explain.

Criminal Charges Do Not Require Showing Intent

The Miami Herald offered this report:

"There is no question there'll be an enforcement action," said David M. Uhlmann, who headed the Justice Department's environmental crimes section for seven years during the Clinton and Bush administrations. "And, it's very likely that there will be at least some criminal charges brought."

Such a likelihood has broad legal implications for BP and the two other companies involved - not the least of which is the amount of money any responsible party could be required to pay. The White House is asking Congress to lift the current $75 million cap on liability under the Oil Pollution Act of 1990, but there's no cap on criminal penalties. In fact, prosecutors in such cases can seek twice the cost of environmental and economic damages resulting from the spill.

Under the Federal Clean Water and Air Acts and other legislation, even an accidental spill of this size can lead to charges of misdemeanor negligence charges. Legislation protecting migratory birds offers prosecutors very broad discretion, as Florida defense attorneys can tell you.

Where Will the Blame Be Laid?

As the Miami Herald report continued: "If it happens, then you can charge it," said William Carter, a former federal prosecutor of 14 years who headed the environmental crimes section for the Los Angeles U.S. attorney's office. "There's no intent required."

Fingers are being pointed. BP officials have gone on the record stating that the explosion was due to equipment owned by Transocean. The question of Halliburton’s work on cementing the Deepwater Horizon drill hole has also been raised. Halliburton and Transocean officials are not commenting publicly, probably advised to remain silent by their legal counsel.

What Would You Do If It Were YOUR Firm?

What would you do if your firm were to be charged with violating environmental protection laws, be they federal or state? As soon as you suspect your firm may be so charged, you need to consult with a Miami criminal attorney experienced in these cases. Early intervention could possibly result in lesser charges and the strongest defense possible.

The ABCs of Grand Juries

If you are called as a witness before a federal or state grand jury, your heart may skip a beat given what you may have seen on television. What do you need to know first? Here are the basics of the grand jury system from the American Bar Association. If you suspect you may be indicted, you will want to avail yourself of the services of a criminal attorney.

The modern grand jury serves primarily to review evidence presented by a prosecutor and determine if there is probable cause to indict. Thus there is no need for the jury to hear all of the evidence—just enough to determine probable cause. The current system, based on a centuries old protection against royal abuse, certainly has its critics, who complain that it serves as a rubber stamp for prosecutors, while allowing extraordinary, almost unrestricted powers of investigation.

How Long Does a Grand Jury Sit?

A grand jury is required for federal criminal charges, whereas only about half the states use them. In every federal jurisdiction, for most cases, grand juries sit during weekdays for a month. For highly complex cases (e.g., organized crime, drug rings, and political corruption), “long-term” juries are impaneled for as long as three years. Grand jurors are drawn from the same lists as other jury panels, but are not screened for biases.

What Is the Grand Jury’s Role?

While independent in theory, the grand jury hears only cases brought to it by the prosecutor, who selects the witnesses, awards immunity, questions witnesses, and then decides if he or she has enough evidence to seek an indictment. The basic job of the grand jury is simply to judge what the prosecutor has produced. There is not even a requirement that they be read instructions on the law, and so that seldom happens.

Why the Secrecy?

The controversial judicial secrecy during the proceedings was originally to protect the jurors from outside pressure; today it also serves to prevent the escape of those who may be indicted and to encourage people to testify more freely. It also protects the privacy an innocent person who may be investigated. Note that while the jurors are bound to secrecy, witnesses are not.

Who Must Testify?

Anyone can be compelled to testify before a grand jury, without showing probable cause, and usually without the need to show that the person even has relevant information. Unless a witness can claim special privilege, she or he must answer all questions. (“Special privilege” means one does not have to testify against one’s spouse, share privileged information from legal clients, or testify in a self-incriminating manner.) However, lawyers can be compelled to share information that pertains to the client’s ongoing or future crime or fraud. Any witness who refuses to testify may be found in contempt of court and may be subject to incarceration.

While federal witnesses may consult criminal lawyers, they may not have their lawyers present in the grand jury room. They can interrupt their testimony, however, to consult with their lawyer outside the grand jury room. Some states do allow the attorneys to accompany their client—but in some cases are merely allowed to observe without advising.

If you need the counsel of a Miami or Fort Lauderdale criminal attorney, check our prior post about how to select the one that will serve your needs best.