Fifth Circuit Agrees with Cassell that Crime Victims’ Rights Were Violated

On May 7, the U.S. Court of Appeals for the Fifth Circuit released an opinion agreeing with pro bono attorney Professor Paul Cassell that the rights of crime victims’ had been violated when the federal government negotiated a plea bargain with BP Products.

The case involves the Texas City oil refinery disaster, in which an explosion at BP’s refinery killed 15 workers and injured 170. In its decision, the Fifth Circuit found that the U.S. Attorney’s Office had violated the Crime Victims Rights Act (CVRA) in reaching a plea bargain with BP.  In October 2007, the U.S. Attorney’s Office had obtained a secret, ex parte order from the district court relieving the Office of any need to notify the victims.  It then reached a plea bargain with BP Products in which the company agreed to plead guilty to a felony environmental charge and pay $50 million to settle the matter.  The plea bargain was reached without any involvement of the victims.

In finding a violation of the victims’ rights, the Fifth Circuit held that “it was contrary to the provisions of the CVRA for the [district] court to permit and employ the ex parte proceedings that have taken place — proceedings that have no precedent, as far as we can determine.”  Instead, the Fifth Circuit stated that the U.S. Attorney’s Office “should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain.”

The Fifth Circuit concluded that “the unfortunate fact is that the plea agreement was reached without the victims’ being able to participate by conferring in advance.”  However, the Fifth Circuit remanded the case to the district court for further proceedings in which the district court “will fully consider the victims’ objections [to the proposed plea bargain] and concerns in deciding whether the plea agreement should be accepted.”

Professor Cassell, a nationally recognized expert on crime victims’ rights, has joined attorney David Perry of Perry & Haas, Corpus Christi, Texas, to fight for the victims on a pro bono basis.  Cassell stated: “The Fifth Circuit has taken one step forward by recognizing that crime victims have the right to be involved in the criminal justice process, including the negotiation of plea agreements.  But unfortunately the Fifth Circuit also took a step back by refusing to throw out this plea bargain and instead sending the matter back for the further proceedings in the district  court.”

David Perry added:  “While we are gratified that the Fifth Circuit acknowledged that the U.S. Attorney illegally violated the rights of the victims, we are shocked at the decision of the 5th Circuit panel that the government can illegally violate the rights of criminal victims as specified in an Act of Congress with impunity.  These victims were first injured by BP illegal conduct, then again by the illegal actions of the U.S. Attorney in violating their victims rights under the congressional statute, then again by a plea bargain imposing no more than a slap on the wrist to BP,  and now once again by a ruling effectively approving the illegal conduct of the U.S. Attorney and negating an Act of Congress.”

Cassell and Perry have promised to quickly file a petition for rehearing before the full Fifth Circuit in an effort to have the plea bargain invalidated.