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.