End of the Line
The only case to go to trial in the pollution busts at Williams Brothers Construction has been dumped out of court, fueling new arguments that environmental prosecutors here are abusing their authority.
Williams Brothers, the road-building giant, had been accused of felony water pollution at two of its properties in 2001. The District Attorney's environmental enforcement section and the company reached a settlement in February: The charges will be dismissed after the company, which had cleaned up the site, pays $500,000 into a fund for a hike and bike trail. Two employees copped to misdemeanor pleas in return for one-year probated sentences.
The third worker, Kevin Parker, went to trial this spring on his felony charge of polluting waterways. However, even the state's witnesses conceded that there was no evidence of any kind that he'd been involved in contaminating the company's central yard near Hopper Road and the Eastex Freeway.
In fact, testimony indicated that Parker was charged primarily because he'd been cooperative with investigators when they first entered the property. Houston Police Sergeant Michael Walsh testified that he noticed the polluted grounds and was looking around for a yard manager and eventually found Parker. Parker called the company to have the safety officer sent to the site to assist Walsh.
Walsh contended that Parker had "confessed" when told about the pollution, saying, "We're guilty of all that." Defense attorney Dean Blumrosen scoffed at that statement, saying Parker merely acknowledged that if the company had polluted the site, it would clean it up. The sergeant conceded that, despite hearing what he believed to be a confession to multiple felonies, he never arrested Parker, read him his rights or even attempted to have the worker elaborate on the statement.
"But he just confessed to you to committing a couple of felonies, and then he just went over somewhere to work, I guess," Blumrosen asked. "Correct?"
"I don't know where he went," Walsh replied.
The sergeant also testified that he got the impression that Parker was manager of the yard. Instead, Parker was only a supervisor for bridge construction and had an office at the site. (The pollution was there long before Parker arrived in 2000.) In the 16 months before Parker was indicted, there was no follow-up investigation to determine his title or if he had been involved in polluting the area, Walsh testified on cross-examination.
The state argued that under the 2001 felony water pollution law, none of that mattered -- and that Parker should be convicted, anyway. Prosecutor Eric Bily argued that it is a "crime of omission" for a person simply to be aware of contamination and not report it.
That posture led Blumrosen, in jury selection, to warn that a resident would be guilty of a felony if he sees a neighbor washing down his driveway after that neighbor spills any oil during an oil change on a car. "It seems that the law is so wide open...probably 80 percent of the people in this room are felons," one prospective juror remarked.
State District Judge Jim Wallace had declined to rule that the law was unconstitutional in pretrial arguments. He jokingly said he would "let somebody else decide it. All those real smart folks up in the court of appeals."
However, after the state's witnesses, the judge was receptive when Blumrosen and co-counsel George "Mac" Secrest moved for a directed acquittal on the grounds that prosecutors had failed to prove their case.
Judge Wallace asked prosecutor Bily if it wasn't true that, under his interpretation of the statute, "every single person that worked for Williams Brothers that went on that property, whether it was supervisor, employees or whatever, that saw this, could possibly be in violation?"
The prosecutor confirmed that position. Bily explained later that he believed the statute meant that those who had a duty to report the pollution would be the same ones responsible for seeking a state permit for disposing of wastes -- although the judge noted that no agency would grant a permit for such illegal discharges.
Secrest was incredulous, noting that as many as 40 people with the company had the same access to the site and responsibilities as Parker, yet none were charged. "It is not our fault they drafted the legislation the way they did," he told the judge. "And I'm sorry in this case they decided to let the corporation walk and not conduct any investigation to try to figure out who was responsible."
Judge Wallace said he was amazed that there had been no appellate ruling on the years-old statute. Defense attorneys say one reason is that other district attorneys in the state realize the folly of such "crime of omission" pollution prosecutions. Harris County may run up impressive statistics on those charges, but seldom do any cases go to trial, they say.
The judge remarked that it was his first directed acquittal in all his years on the bench.
Environmental prosecution chief Roger Haseman says his team will continue to charge defendants with crime by omission. "The statute is still a valid statute until the appellate courts tell us it is not," he says. "I don't expect that's going to happen." However, Blumrosen says at least two other judges in Harris County have found the D.A.'s interpretation of the statute to be unconstitutional -- the law itself merely states that it is a crime to discharge pollutants or allow them to be discharged. Haseman predicted more challenges to the law because of the ruling. "We'll have to wait and see what the other trial judges do."
Williams Brothers declined to discuss Wallace's ruling or its impact. "The company has settled its differences with the government and has gotten back to business," says Bob Sussman, the attorney who represented the company in its case.
The acquittal was the latest blow to the District Attorney's environmental enforcement division. In recent years, protests by companies and attorneys have escalated over what they view as out-of-control tactics used by prosecutors -- abuses that never would be tolerated elsewhere in the judicial system (see "Dumped On" and "Getting Wasted," January 31, 2002). Last year the legislature reacted to the accounts of bullying tactics with a new law requiring prosecutors to obtain state approval before filing felony charges against permit holders.
That re-ignited a popular theme in the media, most recently repeated by Houston Chronicle columnist Rick Casey: Valiant Harris County prosecutors collar corporate polluters, then industries buy off the state legislature to rein in the crusade.
The story line, of course, conveniently ignores what has happened to cases at trial. The Chronicle reported Parker's felony charge -- there was no mention of his acquittal or the reaction from the jury.
One juror wondered openly why Parker was used as a "scapegoat by the D.A.'s office"; another decried the prosecutor's "waste of taxpayer money." Some others on the panel had a more basic response: When Judge Wallace announced his ruling dismissing the case, the sound of applause could be heard coming from the jury box.
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