Federal appeals court upholds ruling that gives new trial to BP engineer in Deepwater Horizon disaster _lowres

Associated Press file photo by GERALD HERBERT -- Kurt Mix, left leaves federal court with an unidentified member of his defense team in New Orleans during his obstruction of justice trial in December. A federal judge has since thrown out the conviction and ordered a new trial.

A former BP engineer who was convicted of obstructing the federal government’s criminal investigation into the 2010 Deepwater Horizon disaster deserves a new trial because of juror misconduct, a federal appeals court ruled Tuesday.

The 5th U.S. Circuit Court of Appeals upheld a lower court’s ruling granting a new trial for Kurt Mix, who was convicted in 2013 of obstruction of justice for deleting hundreds of text messages that he exchanged with a BP supervisor in the wake of the oil spill.

Mix was brought on by BP after the April 20, 2010, blowout to determine how much oil was gushing from the busted well. He played no role in the fire and explosion aboard the drilling rig or in what a federal judge deemed BP’s “profit-driven” missteps that led to the disaster, which killed 11 men.

However, the U.S. Justice Department alleged that Mix deleted the messages to “corruptly” hamper federal investigators as they investigated what BP knew as it worked to plug the well.

Mix was found guilty of one charge and acquitted of another following a December 2013 trial.

Mix’s attorneys asked U.S. District Judge Stanwood Duval Jr. to vacate the jury’s guilty verdict after the lawyers called a juror following the verdict, ostensibly to gauge what went wrong in their defense.

The juror disclosed that the forewoman had told the rest of the group that she had overheard a conversation in the courthouse elevator saying that “there were going to be other trials” of BP employees linked to the spill. The forewoman said knowing that made it easier for her to render a guilty verdict, according to the juror who spoke with Mix’s lawyers.

At the time of the forewoman’s purported comment, the case appeared to be headed for a mistrial; jurors had already deliberated for nine hours and had told Duval they were deadlocked.

But shortly after the jury forewoman’s comment, the jury found the engineer guilty of one obstruction count, Mix’s lawyers contended.

Mix’s lawyers filed a motion for a new trial, and Duval ordered the 12 jurors to appear in court so he could interview each one separately. Duval later said the forewoman denied making the reported remarks to other jurors, but he found that her story didn’t hold up. Duval said five other jurors testified they’d heard her repeat what she heard on the elevator.

Even though he granted the motion for a new trial, Duval was critical of Mix’s attorneys for conducting the interview and taking weeks to report it to the court.

In her 17-page ruling written on behalf of a three-judge panel, 5th Circuit Court Judge Edith Brown Clement agreed with Duval’s assessment that Mix’s lawyers “acted improperly, and perhaps even unethically, in contacting the jurors.”

Still, Clement, who was appointed by former President George W. Bush, wrote that the forewoman’s disclosure tainted the jury’s deliberations. “Even one juror’s prejudice is sufficient to warrant a new trial,” she wrote.

Though it might not have startled a juror to hear that Mix was not the only person charged with a crime in the worst environmental disaster in U.S. history, Clement found that the “overheard information lent credence to the government’s theory in the case, which was that Mix deleted the texts to hide the fact that he knew he was misrepresenting the flow rate.”

At the very least, the appellate panel ruled, the juror “failed to follow the instruction to report exposure to extrinsic information to the district court.”

Several jurors told a reporter after the trial that the testimony of a BP contractor named Wilson Arabie — who was on the receiving end of many of the deleted text messages — was the key factor that distinguished the two counts in their minds. Arabie testified that he didn’t believe most of the 100 or so text messages were relevant to BP’s response. Mix was cleared of that charge.

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

A Justice Department spokesman declined comment Tuesday on the appeals court’s ruling. The government can appeal for a rehearing before the full 5th Circuit bench.

A new trial date has not been set for the single remaining count Mix faces.

Mix, who lives in Texas, was the first of five defendants charged in connection with the oil spill.

He was indicted in 2012 along with BP supervisors Donald Vidrine and Robert Kaluza. The three men have argued that they were being made fall guys for the disaster.

David Rainey, BP’s former vice president of exploration for the Gulf, was acquitted June 5 on a charge of lying to investigators about how much oil was gushing from the well.

The fifth man, Anthony Badalamenti, a former cementing technology director for Halliburton Energy Services Inc., was sentenced to one year of probation after pleading guilty in 2013 to destroying evidence after the spill.

Follow Richard Thompson on Twitter, @rthompsonMSY.