A daily look at legal news and the business of law:
Criminal BP Probe Underway
In many ways, it's not news that the Department of Justice is investigating BP (BP) for criminal and civil violations -- honestly, how could it not? The damage from this spill is already beyond belief, and it's likely the leak won't be stopped until August at the earliest, via a relief well. The spill was not inevitable; it was a direct result of the actions of BP and other companies involved. It would be unimaginable to avoid investigating the companies. What I found striking about the announcement Tuesday was that U.S. Attorney General Eric Holder made a point of emphasizing the 11 dead workers:
"Eleven innocent lives lost. As we examine the causes of the explosion and subsequent spill, I want to assure the American people that we will not forget the price those workers paid."
Holder also noted that Justice was investigating violations of "traditional criminal statutes" as well as environmental crimes. Is some variation of manslaughter at the end of that road?
Whatever else results from the probe, you can be sure that it will include the end of the $75 million cap on BP's liability. That limit doesn't apply if BP committed a crime, and under the environmental statutes, proving a crime should be a relatively easy task given everything that's been coming out about this spill.
Judge Rakoff's Ratings Agency Opinion Holds No Surprises
Judge Jed Rakoff finally issued an opinion explaining his dismissal of claims against the ratings agencies, but it broke no new ground. The plaintiffs foundered on the same issue that emerges every time they try to sue the ratings agencies under federal securities laws: The agencies aren't underwriters, or sellers, or issuers -- the kinds of people or companies those laws say can be sued. Luckily for plaintiffs, a host of common and state laws exist that do allow claims to be brought against the ratings agencies. Those cases are all still in their early days, but at least they're able to go forward.
Southern Juries Are Still Lily White
The Constitutional guarantee of a jury of your peers doesn't mean a jury that is like you in any socio-economic sense, including race. When picking a jury, attorneys from both sides get to strike potential jurors for cause or without cause (a certain number of each), but jurors cannot be excluded purely on the basis of race. Nonetheless any race-neutral pretense can suffice to justify striking a juror. A new study by the Equal Justice Initiative reported in The New York Times describes how Southern juries -- at least juries in death penalty cases -- are overwhelmingly white.
From 1999 to 2007, potential black jurors in a Louisiana parish were struck three times as often as white jurors. Why? Well, research has apparently shown that mixed-race juries consider more angles and deliberate longer, making fewer factual errors, and that predominately black juries generally are less likely to impose the death penalty. So, if you want a quick death penalty decision, an all-white jury is more likely to give it to you.
The Times discusses how this past April an Alabama prosecutor was forced to justify striking 11 of 14 potential black jurors, and he explained some of his choices this way: One "shucked and jived" when he walked; one was "arrogant" and "pretty vocal"; in a woman he detected "hostility"; and five others were not "sophisticated." The Times didn't mention the "reason" the other three were struck.