Arkema Fully Cleared In Criminal Emissions Trial
A Texas state judge on Thursday, October 1, 2020, threw out remaining criminal charges against Arkema Inc. and the former manager of a plant accused of reckless chemical releases during Hurricane Harvey, cutting short a trial and finding that no evidence in the record supported the felony charges.
Judge Finds Misconduct, But Won’t End Arkema Criminal Trial
The judge presiding over the felony criminal case against Arkema and two executives over chemical releases during Hurricane Harvey determined Thursday that while the prosecutors had committed misconduct, it wasn’t intentional, and declined to grant a mistrial with prejudice.
Sept. 25, 2020
HOUSTON (Reuters) – A criminal case against the U.S. arm of a French chemical maker accused of releasing pollution that injured 21 people resumed on Thursday under a cloud as a judge ruled out a motion to dismiss the case.
Prosecutors unintentionally misled a grand jury by claiming another firm, unlike Arkema, moved its hazardous chemicals when presented with the threat of flooding, Texas Judge Belinda Hill said in court on Thursday, allowing the trial to proceed. Defense attorneys had argued the grand jury testimony was part of a pattern of misconduct that tainted the case.
The company’s Crosby, Texas, plant became waterlogged and lost power needed to cool organic peroxide chemicals after Hurricane Harvey dumped more than 50 inches of rain on the area in 2017. The untended chemicals caught fire and burned for days, injuring 21 safety workers and forcing residents from their homes.
Arkema and its U.S. chief executive, Richard Rowe, and former plant manager Leslie Comardelle face felony charges for the pollution released by the chemical blaze. The company faces up to a $1 million fine and the executives could receive up to five years in prison.
The trial resumed after being suspended in the spring due to the pandemic. Judge Hill plans to release her findings on the misconduct at a later time, according to a person familiar with the matter. Earlier this year, she sanctioned prosecutors for withholding other evidence beneficial to the defense.
Prosecutors this month agreed to drop separate assault charges against the company and a third executive over smoke inhalation injuries suffered by public safety workers assigned to guard the plant.
Arkema maintains the case wrongly turns a flooding disaster into a criminal case.
Judge Belinda Hill is a visiting judge on this criminal trial. Belinda Hill was a judge of District 230 in Harris County, Texas. She was appointed in 1997 by Governor George W. Bush, and she resigned in December of 2012 to become a District Attorney for the county. She earned a B.A. in communications and rhetoric from the University of Virginia, going on to receive her J.D. in 1982 from the Thurgood Marshall School of Law.
Remember the Arkema Plant Fire?
Well, what was DA Kim Ogg’s real interest in prosecuting? Watch the Video, it’s A-Typical of Texas
And this is who is supposed to investigate Houston City Hall and Mayor Turner et al? #txlege #operationwhiteout https://t.co/afo30lSPYP pic.twitter.com/oH3LCT6Anm— LawsInTexas (@lawsintexasusa) October 22, 2021
Defense alleges prosecutorial misconduct — again — in Arkema trial
Arkema Inc.’s attorneys are calling for a judge to dismiss a high-profile trial about the chemical company’s handling of organic peroxides during Hurricane Harvey, again alleging prosecutors withheld vital information from the defense.
The lawyers referenced a “pattern of prosecutorial misconduct” in the case against Arkema, which faces rare environmental charges over emissions that took place during the historic storm. Judge Belinda Hill will hear the company’s motion on Sept. 10, according to court documents.
“Time and time again, the prosecutors’ actions have violated the law and applicable ethical standards,” Arkema’s attorneys wrote. “The termination of this prosecution, without retrial, is the remedy that Defendants seek here. Justice requires no less.”
The jury trial, which began in February, has been on hold since March closures and lockdowns triggered by the global pandemic. Proceedings had already been tense until that point, with earlier allegations of prosecutorial misconduct – also based on claims of withholding information – leading to a delay of the trial’s first start date.
In the latest complaint, defense attorneys Rusty Hardin and Derek Hollingsworth alleged that state lawyers and a special prosecutor withheld evidence about how the only other producer of cold-storage organic peroxides in Houston, AkzoNobel, responded to Hurricane Harvey. They say Akzo took actions similar to those taken by Arkema, but that information was kept from them.
The trial centers on Arkema Inc. and its executives’ decision to not move the dangerous chemicals offsite as the storm approached the Crosby plant, which sits on a 100-year and 500-year floodplain. The organic peroxides eventually combusted as the property flooded, causing 23 people to be briefly hospitalized and more than 200 nearby residents to be evacuated. Two sheriff’s deputies were counted among the injured.
Prosecutors say the core of Arkema’s motion is false. Arkema’s attorneys acknowledged as far back as August 2019 that Azko moved some and not all of its chemicals, they said.
“The State gave Defendants all the documents that relayed all the information well ahead of trial,” said Alexander Forrest, chief of the district attorney’s office’s environmental crimes division. “Defendants simply cannot show that any prejudice resulted from a delay in disclosure even had one actually happened.”
The Harris County District Attorney’s Office in April 2019 charged Arkema and its then-vice president for logistics, Michael Keough, with reckless assault on a peace officer. Prosecutors had earlier brought another felony reckless charge against the company, CEO Richard Rowe and plant manager Leslie Comardelle for the release of toxic chemicals.
During the trial, prosecutors held up AkzoNobel as a standard of responsible chemical production, the defense said, despite knowing that “Arkema and AkzoNobel engaged in nearly identical hurricane response.”
AkzoNobel had initially declined interviews with the defense, meaning the lawyers had to rely on information that prosecutors provided, Hardin and Hollingsworth said.
Arkema’s attorneys eventually spoke with AkzoNobel’s logistics manager during Harvey, hearing that the two companies had similar disaster plans. The defense then concluded that prosecutors knew facts that were different from what they stated, Hardin and Hollingsworth said, because they learned from prosecutors’ “cryptic” notes that AkzoNobel had shared exculpatory information with the state prior to the trial.
“The State sat on this information and did not disclose it to Defendants,” they said.
Forrest disagreed. The state released the information they held, including the amount of storage that Akzo moved off site.
The opposing teams’ disagreements also go beyond the latest motion. While Arkema’s attorneys claim that prosecutors have consistently withheld or delayed information, the state, led by Forrest and special prosecutor Mike Doyle, have voiced concerns about the defense’s handling of the case.
In June, Doyle filed a motion for an inquiry into possible jury tampering, fearing that an Arkema-sponsored ad on Google could have influenced jurors during the months-long hiatus. The ad is the first result in a search of “Arkema trial” and leads to a webpage with “facts” of the case, some of which had been determined as inadmissable evidence in court, prosecutors said.
