GULF SPILL:

Judges tread carefully over possible conflicts in BP criminal case

After two federal judges recused themselves from a criminal case against former BP PLC managers indicted for their role in the Deepwater Horizon disaster, a third has made disclosures of his own.

U.S. District Judge Stanwood Duval of the Eastern District of Louisiana has asked the parties whether they think he should be disqualified from overseeing the trial of Robert Kaluza and Donald Vidrine, who were both well site leaders on the Deepwater Horizon rig. Duval doesn't think he needs to step aside, and the defendants' lawyers have already said they agree.

Duval issued an order Wednesday in which he noted two potential grounds for recusal: that he owns a camp near a beach on the coast and is therefore entitled to compensation from BP and that his son is working for the fund set up to compensate victims of the spill.

The judge made it clear he does not think he has to recuse himself because he "neither has a direct interest in the subject matter of this criminal proceeding nor does he believe that his impartiality with respect to the defendant may reasonably be questioned."

But Duval -- the third judge to be assigned the case -- said he wished to make the disclosures "given the nature of this matter."

Kaluza and Vidrine face a 23-count indictment accusing them of 11 counts of involuntary manslaughter, 11 counts of what is known as "seaman's manslaughter" and one count of negligently discharging oil in violation of the Clean Water Act over their role in the April 20, 2010, explosion and resulting oil spill (E&ENews PM, Nov. 15).

A filing by the defendants' lawyers yesterday said they did not object to Duval's overseeing the trial. The Justice Department has yet to respond. The government did not, however, object to Duval's overseeing the prosecution of Kurt Mix, a former BP engineer, over alleged false statements he made during the investigation. Duval made the same disclosures in that case.

The previous judges to recuse themselves were Ivan Lemelle and Nannette Brown. Lemelle did not specify why, although media reports say his wife owns stock in Halliburton Co., one of BP's contractors. Brown said her reason for stepping aside was the work she did on litigation related to the BP spill while serving as the city attorney for New Orleans.

There are a total of 16 active and senior status judges in the district, according to the district's website.

The apparent problem with finding a judge to hear the case reflects two facts: that the BP disaster affected many lives in the New Orleans area and that the oil and gas industry is a dominant force in the local economy, even within the legal community, experts say.

"When you are dealing with the environmental disaster of the decade, it is unsurprising that everyone in the region -- judges included -- will be affected in one way or another," said Charles Geyh, a law professor at the Maurer School of Law at Indiana University, Bloomington, who is an expert on judicial ethics.

In light of the size of the disaster, "judges may be more inclined than usual to err on the side of full disclosure," Geyh added.

John Cruden, a former Justice Department official who is now president of the Environmental Law Institute, said the judges were "following traditional rules regarding recusal."

Duval's order "is a conscientious effort to advise the parties of possible grounds for recusal and solicit their views," he said.

Cruden noted that the various recusals will serve to delay "already difficult prosecutions."

If any of the criminal cases end up on appeal, there could be similar problems on the 5th U.S. Circuit Court of Appeals. A number of the court's members have investments in oil industry interests or previously worked in the energy sector (Greenwire, June 24, 2011).

Along with Vidrine, Kaluza and Mix, former BP executive David Rainey also faces criminal charges. As in Mix's case, the government is focusing on statements he made during the investigation.

BP itself has settled the criminal claims against it by agreeing to pay $4 billion in fines and penalties (Greenwire, Nov. 15).