Judge punishes Arkema prosecutors
Opening statements delayed after court imposes sanctions for withholding evidence
Harris County prosecutors had a duty to find out more when a former key witness appeared to change his testimony in the criminal case against Arkema, the owner of a plant that released hazardous chemicals during Hurricane Harvey, a state district judge said Monday.
Judge Belinda Hill also sanctioned prosecutors for withholding or delaying the disclosure of evidence that was beneficial to the defense. Hill’s ruling came during a roughly two-hour-long misconduct hearing that was to have been followed by opening statements.
Responding to a defense request for a dismissal, Hill said she would not grant one at the moment, but proposed a continuance as a penalty for what is called a Brady violation. The defense asked for two days, with opening statements now scheduled for Thursday morning.
At the center of the state’s case is why Arkema didn’t move its organic peroxides as Harvey neared landfall on the Texas Gulf Coast in August 2017.
Floodwaters started to rise in Arkema’s Crosby plant, which sits within the 100-year and 500-year floodplains. This eventually cut off power to the entire facility, leading to the combustion of organic peroxides that must be kept at temperatures at or near freezing to prevent the chemicals from self-combusting. As a result, 23 people were briefly hospitalized and more than 200 residents living within 1.5 miles were evacuated and could not return home for a week.
The Harris County District Attorney’s Office last April charged Arkema and its then-vice president for logistics, Michael Keough, with reckless assault on a peace officer. Prosecutors months earlier had brought another felony reckless charge against the company, CEO Richard Rowe and plant manager Leslie Comardelle in connection with the release of toxic chemicals.
Prosecutors alleged that the company misrepresented how closely it could remotely monitor the temperature of all of the haz
ardous materials to be able to warn emergency responders to evacuate safely.
Law-enforcement officers manning the perimeter and responding medical staff reported vomiting and gasping for breath, according to a civil lawsuit filed against Arkema by first responders.
But in a recent deposition for a civil case against Arkema, David Wade, the industrial liaison for the Harris County Office of Homeland Security and Emergency Management and a key prosecution witness, said at some point he became aware that there were at least two trailers the company could not remotely monitor.
The question raised Monday involved the state’s obligation to find out more from Wade after he told attorneys from the DA’s office last September that he could no longer recall a lot of information he had provided previously.
“Per my meeting with you and Grant (Harvey) on 3 September, and after reviewing the documentation available to me, I cannot, with certainty, provide a timeline of those things I only have recall of, nor can I verify those things I only have recall of,” Wade wrote prosecutors on Sept. 16, nearly a couple of weeks after they met.
Defense attorneys questioned Alexander Forrest, the chief of the environmental crimes division in the DA’s office, for more than an hour about his meetings with Wade, and why he hadn’t taken notes or followed up with him.
“Didn’t even try?” Rusty Hardin, an attorney representing Arkema, asked Forrest.
“I didn’t understand what the email meant and I did not call him back,” he responded.
Dan Cogdell, Keogh’s attorney, questioned the prosecutors’ experience, which is mostly in the civil area. “They have zero experience in terms of their Brady obligations,” he said, visibly exasperated, and berated prosecutors whom he referred to as “amateurs.”
The defense claimed that evidence shows that Arkema informed state and county officials about the situation and the fact that they weren’t able to monitor all the trailers.
But prosecutors say they are able to prove that while some, including an official with the Texas Commission on Environmental Quality, had that information, it doesn’t mean that the county or first responders were aware that Arkema could not account for all of the hazardous chemicals.
And the new material that the defense cited as the original reason for the misconduct hearing was “self-created” through civil proceedings, said Mike Doyle, a special prosecutor in the case. Besides, he added, defense attorneys failed to prove the prosecution had additional information they failed to share.
Hill, the judge, agreed defense attorneys had not proved the prosecution had additional evidence that could help the defense, but asked why Forrest didn’t follow up with Wade after he found him to be an “unreliable” witness.
Prosecutors also turned over more documents late Sunday, including handwritten notes that Forrest took in 2017 after speaking with federal investigators from the U.S. Chemical Safety Board, that Hill said “appeared to be helpful to defense.”
While saying that she believes it wasn’t deliberate, Hill said she’s been concerned about late disclosures and noted that additional information had been turned over “when the jury has been picked and we are actually in trial.”
“I can’t tell you what the sanction will be at this point,” Hill said, leaving open the possibility for additional penalties.