Both sides agree BP engineer deleted emails, not on whether it was a crime

Ex-BP engineer faces up to 40 years in jail

Opening arguments Tuesday in former BP engineer Kurt Mix’s federal trial on charges of obstructing justice found the two sides in harmony on one point: Mix indeed deleted text messages and voice mails from his work phone in the wake of the Deepwater Horizon disaster.

However, that’s about the only thing prosecutors and defense attorneys agreed on in outlining the actions of the first criminal defendant to be tried in connection with the 2010 BP oil disaster in the Gulf of Mexico.

Mix, who lives in Texas, was brought in by BP after the well blew out in April 2010 to analyze how much oil was gushing into the Gulf. He played no part in the explosion aboard the drilling rig or in the missteps by BP and its partners in the Macondo project that led to the accident.

Days after the explosion, Mix determined oil was flowing at a rate of about 64,000 to 110,000 barrels a day. At the time, BP officials were telling federal investigators and the public that only 5,000 barrels of oil were being released daily.

Mix was indicted in May 2012, accused of trying to hamper government investigators by deleting text messages and voice mails.

He is being tried on two counts of obstruction of justice — and faces a potential prison sentence of up to 20 years on each count — for deleting two strings of text messages: 200 messages that he exchanged with a BP supervisor, and another 100 messages with a contractor. Mix also is accused of deleting three voice mails, one from a supervisor, one from a BP contractor and one from an unidentified caller who went through BP’s switchboard.

Prosecutors from the Department of Justice contend Mix got rid of the messages to stall the government’s investigation into whether executives of the British oil giant in fact knew how much oil was spewing from their runaway well, and when exactly they knew it. His defense attorneys contend the messages were mostly irrelevant exchanges with people who were more like friends than colleagues.

“This is a case about choices. This is a case about a BP engineer, Kurt Mix, who in the wake of the massive Macondo spill, was told over and over not to delete messages, and he made the choice to do it anyway,” said Jennifer Saulino, a Justice Department prosecutor, during the government’s opening argument. “This is what this case is about. That is why we are here.”

Addressing the jury of eight women and seven men, including three alternates, Saulino painted a picture of Mix as BP’s “go-to guy for calculating the flow rate” and providing critical insight in the 87 days that millions of gallons of heavy crude oil poured into the Gulf, into wetlands and onto Gulf Coast beaches.

“It was the thing everyone wanted to know,” Saulino said about the oil-flow rate. “It was on all the news programs, and it was critical to figuring out how to stop the spill.”

Mix received about 10 notices from BP to preserve documents and messages relating to the disaster, Saulino told the jury. But Mix’s attorney, Joan McPhee, said BP’s instructions for saving the messages were discretionary.

“Each and every one of those notices says right at the top, in the very first paragraph, that employees need to preserve relevant information, and that relevant information is information that the employee reasonably believes to be relevant to the Macondo incident,” McPhee said during opening arguments.

She added: “In other words, BP let its employees use their own judgment, gave permission to Kurt and his coworkers, not to keep everything. And if the government doesn’t like BP’s policy, or disagrees with Kurt’s judgment, that’s OK, but they don’t get to make it a crime. They don’t get to make it obstruction of justice.”

The defense downplayed Mix’s place on BP’s corporate ladder, calling him “a low-level guy in the vast hierarchy of BP,” and an easy target to appease a public cry for corporate accountability after the worst environmental disaster in the nation’s history.

“He was no CEO or fat-cat executive,” McPhee said. “He was a boots-on-the-ground, get-it-done practical problem-solving engineer with a capacity for hard work like no tomorrow.”

Prosecutors contend that regardless of what the messages said, Mix should not have deleted them, but he did anyway and therefore should go to jail. “Intentionally deleting text messages and voice mails to keep them out of the hands of a federal grand jury investigation is a federal crime,” Saulino said. “It is simple. It is straightforward.”

Defense lawyers replied that Mix made every effort to back up and preserve his other documents related to the disaster, and that he had no reason to try to hide information from a grand jury.

All but 17 of the deleted text messages later were recovered by forensic experts, Saulino said.

After a day and a half of questioning, a jury was seated Tuesday in the trial. U.S. District Judge Stanwood Duval Jr. said the proceeding is expected to last three weeks.

Eleven workers were killed when the Deepwater Horizon drilling rig caught fire and exploded about 50 miles off the Louisiana coast.

BP pleaded guilty to criminal charges related to the disaster earlier this year, admitting to 11 counts of felony manslaughter, obstruction of Congress and a series of environmental crimes. It agreed to pay a $4 billion fine. More than three years after the Macondo blowout, however, just four of its employees have been charged. Three of them are low-level workers, facing the potential of decades in prison.