A former BP engineer charged with obstructing justice in connection with the investigation of the 2010 Gulf of Mexico oil spill is renewing efforts to have the indictment against him dismissed.
In a filing in federal court in New Orleans on Monday night, Kurt Mix’s attorney, Joan McPhee, alleged that transcripts show that prosecutors failed to properly inform the grand jury who indicted Mix on three different occasions of the law.
“These transcripts — which the court has not previously had available to it and, thus, has not previously reviewed or considered — reveal a series of serious, recurring defects in the three grand jury proceedings from which the indictments against Mix issued,” McPhee wrote. “These defects are so fundamental, and so strike at the heart of the structural protections afforded by the Fifth Amendment’s grand jury clause, that the indictments against Mix must be dismissed as constitutionally invalid.”
Mix is accused of deleting text messages and voice-mails about the amount of oil that spewed from an undersea well owned by BP after it blew out off the coast of Louisiana, triggering an explosion on the Transocean-owned Deepwater Horizon rig that killed 11 workers. The oil spill was the worst offshore spill in U.S. history.
In the latest motion to dismiss, McPhee said that despite having three opportunities to do so, prosecutors never introduced to the grand jury any evidence regarding the content of the text messages and voice-mails Mix is charged with deleting.
“Instead, through the use of leading questions, the prosecutor elicited from a pair of FBI case agents that Mix received several ‘legal hold notices’ that instructed him not to delete text messages or voice-mails, and after receiving these hold notices, Mix deleted text messages and voice-mails from his iPhone,” McPhee wrote.
The attorney added, “The manner in which this evidence was presented obscured that the ‘legal hold notices’ that Mix received were not governmental orders with the force of law; effectively rendered the content of the deleted text messages and voice-mails legally irrelevant; and conflated the violation of a ‘legal hold notice’ with felony obstruction of justice, which this court already has recognized is manifestly not the law.”
McPhee said prosecutors had the burden to show to the grand jury that Mix acted with the “specific intent to subvert or undermine the due administration of justice.”
A judge previously left the charges against Mix intact. But, McPhee said that in light of the full transcripts of the grand jury proceedings, the judge should throw out the indictment. There was no immediate ruling.
Mix, of Katy, has pleaded not guilty. He is scheduled for trial Dec. 2.