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May 8, 2008

Great coverage of Fifth Circuit CVRA ruling in BP case

The Houston Chronicle has this terrific article covering yesterday's interesting ruling about the Crime Victims' Rights Act in In Re: Dean, No. 08-20125 (5th Cir. May 7, 2008) (discussed here).  Here are excerpts from the article:

A federal appeals court ruled Wednesday that the rights of victims of the 2005 BP explosion in Texas City were violated by Houston federal prosecutors and a judge, but the plea bargain they object to remains on the table.  The 5th U.S. Circuit Court of Appeals said a 2004 law that gives crime victims a say in the process was violated when the prosecutors got U.S. District Judge Nancy Atlas, who was handling miscellaneous courthouse items, to allow a plea bargain to be reached with BP without letting the victims know about the plan.

"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing," said Paul Cassell, a former federal judge and professor at the University of Utah College of Law who specializes in victims rights and is representing the victims in the BP case....

In October 2007, BP's North American products division agreed to plead guilty to a felony violation of the federal Clean Air Act, pay the $50 million fine and serve three years of probation for the blast, which killed 15 people and hurt many more.  The plea agreement must be accepted by a judge to be final and that has not yet happened....

The appellate ruling Wednesday came after the victims asked the 5th Circuit Court to dissolve the plea deal according to the Crime Victims' Rights Act of 2004.  They wanted the legal remedy provided in the act — that BP and prosecutors be forced to start all over, taking into account the views of the injured people and families of the dead....

Prosecutors have defended the plea bargain and noted that the $50 million fine was the harshest available under the Clean Air Act.  "We are ... disappointed by the appellate court's criticism of the government's good faith reliance upon a court's order approving our approach to meet our CVRA obligations," U.S. Attorney Don DeGabrielle said in a prepared statement....

The appellate court said the reasons to keep the victims out did not "pass muster," and the victims had a right to be involved before a plea deal is reached. Though the appellate court said the victims should have been heard earlier, it said that since they were heard by Rosenthal, it will leave it in her hands to "carefully consider their objections." Victims' lawyer Perry said they will now ask the entire 5th Circuit Court, not just the three-judge panel, to consider the case. "There is a whole lot of difference hearing from somebody after you've made up your mind versus hearing early on in the process," Perry said.  "What they wanted to do here was keep the fact that they were exploring a criminal case from the public and from the victims. Under the victims' rights act, that should not be the case."

Though not emphasized in the article, it should not be overlooked that the Dean ruling deepens a circuit split over the standard for review in CVRA appeals.  In part because these issues are likely to come up again and again in a host of dynamic and interesting contexts, it is likely only a matter of time before the Supreme Court has to deal with what the CVRA means and how it should be enforced.

May 8, 2008 at 11:36 AM | Permalink

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Comments

"It's not really fair to say to the victims that your rights were violated and you get absolutely nothing,"

Yes, because lord knows criminal defendants aren't told all the time that their rights were violated but that they get absolutely nothing. Oh, wait. It's called harmless error and it happens all the time.

Posted by: | May 8, 2008 2:16:33 PM

Victims also have the alternative of a civil suit for damages. Though, as the victims of the Exxon Valdez disaster have discovered, recovering against a corporate defendant is almost impossible.

Posted by: defense attorney | May 8, 2008 7:09:22 PM

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