By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
As the trial wore on, Bazarsky and his attorney, Dean Blumrosen, found their chief adversary to be the guy in the black robe, J.E. Blackburn.
The visiting state district judge from the Amarillo-area hamlet of Spearman seemed preoccupied with the trial's pace, explaining that there was another assignment waiting for him in another court. Blumrosen complained that the judge had reversed key pretrial rulings from an earlier jurist, had repeatedly cut off his cross-examinations and refused to allow him to develop his primary defense -- that this was a minor industrial accident, not any blatant dumping.
Acrimony mounted until Blumrosen finally got a rare "bystanders' bill" in which he had to call for spectators to testify about some of the exchanges with Blackburn.
"And I did say -- you said you wanted it on the record and I said, 'I don't give a damn.' And I'll say it again: I don't give a damn," the judge barked to Blumrosen. At another point in chambers, the judge seemed confused as he commented, "It is kind of hard to compare this to a criminal case."
Walter Bazarsky was found guilty. Blumrosen vowed to fight the outcome in appellate courts, although the validity of this verdict wouldn't get that far.
State District Judge Mark Ellis returned to his court and heard complaints about the visiting judge, from staffers as well as attorneys. But it was hard law that left him in serious doubt about the Bazarsky conviction.
Like a few other criminal laws, the used oil act has specific exceptions that the prosecution must address through evidence. One exception protects licensed salvage operators if the oil "is incident to and the unavoidable result of the mechanized shredding of scrap, used or obsolete metals."
Prosecutors didn't offer any evidence about it, and the judge never let the jury know about the exception. So the conviction didn't meet the fundamental standard of proof beyond a reasonable doubt.
Asked recently about that, prosecutor Haseman says he believes jurors considered the exception and rejected it. "That's a bold-faced lie," Blumrosen says. "He even argued aggressively to Blackburn that they not hear it."
On February 19, 1999, Ellis ordered a new trial. "I certainly didn't have any qualms about prosecuting the man or the company, and apparently the jury didn't either," Haseman says. "They believed our evidence "
But prosecutors apparently had qualms about any retrial. The case was dismissed.
Ellis also told lawyers Blackburn would not preside in his court again, a stance later adopted by the rest of the local judges. Late that same year, the Texas Commission on Judicial Conduct publicly reprimanded the visiting judge for discrediting the judiciary. And the D.A.'s office itself had filed a complaint about him being drunk on the bench in unrelated hearings. While assigned to a court in Corpus Christi, Blackburn failed to show up for a trial. When concerned staffers checked, they found him in his hotel room -- intoxicated or, at best, addled by medication.
Bazarsky and Blumrosen had other matters to worry with. As the last trial approached, the D.A.'s office had upped the stakes with water pollution charges. There was nothing new about the allegations; they stemmed from the seemingly forgotten November 1996 incident of the dripping barrel and Dumpster.
The charges, coming as the statute of limitations was winding down, convinced Blumrosen that a vendetta was under way.
It became obvious that police and prosecutors had done nothing more than file charges. There had been no follow-up investigation in the two years. They'd merely gotten lab results back on the fluid and done little else. One investigator hadn't even bothered to file some reports, so they had to try to re-create them 27 months later.
County Court Judge Analia Wilkerson held firm against prosecutors' efforts to expand the trial into a free-for-all against B&B by including testimony of the forklift incident and every other police allegation against the company. Jurors returned a verdict of not guilty, handing the D.A.'s office its second defeat in less than a year.
A few months later, prosecutors were back. They indicted Bazarsky and his company on new charges. Or rather, old charges in new wrappings.
He'd just been cleared of threatening water pollution by allegedly disposing of oil on November 6, 1996. Now they accused him of disposing of oil on that exact date. And this was a felony.
Blumrosen and attorney George "Mac" Secrest challenged the case, arguing that prosecutors were ignoring basic constitutional safeguards involving collateral estoppel, similar to double jeopardy -- that a defendant who is cleared of wrongdoing can't be tried again for the same alleged crime.
A First Court of Appeals panel of justices Davie Wilson, Adele Hedges and visiting Justice Jackson Smith ultimately found that prosecutors were technically within their rights. At least hypothetically, jurors in the previous case could have believed there was oil discharged, only that it could not have reached the storm sewers to pollute public waterways. But in a rare aside for appellate opinions, justices explained in a footnote that the indictment clashed with the sense of justice. While "existing legal authority" allowed for such a prosecution, the opinion said, "this panel cannot help but regard this result as unfair."