Steffy: BP engineer shouldn’t be the last to be indicted

If it hadn’t been for the leg irons and handcuffs, Kurt Mix might have looked as if he’d come straight from the office.

Wearing a lavender dress shirt and khakis, he stood before the federal magistrate as the first person criminally charged in connection with the Deepwater Horizon disaster.

He shouldn’t be the last.

The former BP engineer’s alleged crime: deleting two strings of text messages.

For that, he could face as much as 20 years in prison and fines of as much as a half-million dollars. He swallowed hard as the judge informed him of the potential sentence, and when he responded to questions from the bench, his replies were little more than whisper.

Mix, 50, finds himself in a place few of us ever expect to be. Most of us fail to consider that the quick flip of a thumb, a point, a click — a common impulse of the computer age — could upend our lives.

The government claims Mix deleted a text string from his iPhone in October 2010 after he learned that BP’s lawyers were collecting electronic files. According to the federal indictment, the text contained more than 200 messages with a BP supervisor that included Mix’s comments about the flow rate of the Macondo well in the Gulf of Mexico that had blown out six months earlier.

Among the discussions in the exchange, which the government said it recovered forensically, was Mix’s assessment that one of the efforts to plug the well, the “top kill,” would fail.

“Too much flow rate — over 15,000,” he wrote.

What did BP know?

Mix and other engineers had determined that the top kill wouldn’t work if oil was flowing out of the broken well at a rate of more than 15,000 barrels a day, according to the indictment.

At the time, BP was publicly stating that the well was flowing at a rate of just 5,000 barrels a day, a third of what Mix’s message indicates.

A second string of texts that Mix allegedly deleted also involved discussions of flow rates, these with a BP contractor.

In other words, if the government’s claims are correct, Mix’s text messages show that BP insiders knew the company’s public statements about the size of the spill were inaccurate.

Even without those messages, we know BP’s estimates were woefully low. Former CEO Tony Hayward’s stubborn pronouncement that “a guesstimate is a guess-timate” was a ruse.

Federal law requires accurate daily estimates of the spill, both for the purposes of assessing fines later and for providing adequate spill response. The early response efforts were hampered by the BP’s low estimates, which the government embraced.

Caught up in a dispute

BP is a company that’s adept at compensating for its operational deficiencies with legal maneuvering. By obfuscating the actual amount of oil released, BP can argue, as it has, that fines for the spill should be lower than what the government seeks.

Mix is simply a pawn in this legal tug of war. In a statement Tuesday, his attorney, Joan McPhee, called the charges “misguided” and said the contents of the emails the government cites are contained in other messages and documents that Mix retained.

Government prosecutors presumably will look at the supervisor who was on the other end of the text conversation. They are no doubt hoping to use Mix’s testimony to build a case and begin working their way up the corporate chain.

Based on what’s contained in the criminal complaint, it appears the messages themselves simply show Mix engaged in a candid discussion with his boss in the course of doing his job.

The lies came from elsewhere in the company. He didn’t tell them; he didn’t even acknowledge them. His messages apparently are merely the evidence that proves those lies.

Too many victims

Mix was released on bond, but he faces another hearing in New Orleans next week. At some point, he’ll probably have to choose between ratting out co-workers or going to prison.

We don’t yet know why Mix allegedly deleted the messages after company lawyers warned against such actions. Regardless of whether it was out of loyalty, impulse, fear or at the suggestion of a supervisor, he shouldn’t have. In doing so, he may have violated the letter of the law.

But if Kurt Mix serves a day in jail while decision-makers higher up in BP remain unindicted, he will become yet another victim of a tragedy that already has too many.

Loren Steffy, loren.steffy@chron.com, is the Chronicle’s business columnist. His commentary appears Sundays, Wednesdays and Fridays. Follow him online at blog.chron.com/lorensteffy, www.facebook.com/LorenSteffypage and twitter.com/lsteffy.