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Getting Wasted

Henley believes prosecutors targeted her client simply because he stood up to them.
Deron Neblett

The offensive against illegal dumping and pollution has many thrusts, but those involved insist that there is only one goal: to get compliance and cleanups.

"Overall, with the staff and resources we have, we are really doing an excellent job of protecting the environment and prosecuting as many violators as we can," Roger Haseman says of his environmental prosecution unit at the Harris County District Attorney's Office.

Houston police Sergeant Larry Doss, who heads the city's special enforcement team, explains that compliance is the key. Investigations are reserved for obvious criminal offenders, not merely those who may accidentally spill contaminants or unknowingly dispose of waste. "We're very big into education," he says. "Our last resort is really filing any charges."

But several attorneys and defendants say the effort has taught them another lesson: that those caught up in this new offensive can be subjected to borderline tactics that may stretch prosecutions to the limit of the law, or even beyond. Many question the real motives and priorities of this push.

"I know for a fact there are plenty of polluters out there they could be throwing the net around," says respected defense lawyer George "Mac" Secrest. "They just don't need to be engaged in this type of conduct."

Among the cases and complaints cited by critics:

• On February 18, 1999, the KTRH radio news Web site teased its morning broadcasts with this: An army of federal, state and local investigators converges on a field in northwest Houston. A massive illegal dump site has been found filled with hazardous chemicals. Barrels of contaminated materials are being hauled out of man-made pits.

Local television news crews were dispatched to what amounted to a raid on the offices of SeaTrax Corporation, a crane manufacturing company, and to a field where barrels of sandblasting residue and toxic paint-related material were buried.

HPD Sergeant Mike Walsh headed the execution of a surprise search warrant on the company. He briefed reporters about the discovery: Management allegedly knew of the illegal disposal, and Walsh told of grave concerns about contamination of the water table that supplied surrounding homes.

Within two weeks, SeaTrax attorney Kenneth Keeling delivered a heavily documented complaint to the HPD internal affairs division, complete with revelations that cast strong doubts on the dynamic raid. According to the complaint, Walsh and the unit had known of the dump for more than five months. They didn't even need a search warrant because the company, in the spirit of cooperation, had given them a consent to search at any time.

As for contaminated water, Walsh himself had overseen two tests that showed no threat to surrounding residents. SeaTrax said the holdup on the remediation was HPD itself; more than a month had passed before Walsh advised the company that the state -- not HPD -- had jurisdiction. Keeling had reported to Walsh when the cleanup would begin, and that just happened to be the time when the raid was launched.

The cost to assemble -- then send back -- the cleanup crews and equipment was $25,000. The only reasonable explanations for Walsh's timing, the complaint stated, "were to cause financial damage to the company and to call media attention to himself."

Apparently the complaint was deemed groundless -- there is no record of disciplinary action against the officer. And there are no charges against SeaTrax, although that may be changing soon. Walsh declined comment on the matter. He does say that the investigation, nearly three years after the raid, is expected to go to a grand jury just in time to meet the legal deadline for filing felony cases.

"I presume that would make a better story than an allegation that was forwarded" to the Internal Affairs Division, the officer says.

• Prosecutors routinely wait until the legal deadline has almost expired before filing charges. "They sit on cases until just before the statute of limitations runs, which frequently makes it difficult for people who are accused to prepare an adequate defense because it involves alleged conduct several years old," explains lawyer Secrest.

Some of the investigations are complex, requiring lab tests, and staffing is limited. However, many delays are intentional. Time and again, defense attorneys spoke of stunned clients who assumed they were no longer under investigation, only to be charged or indicted years later. The result is that defendants are left trying to piece together events that occurred long ago.

The threat of charges can be a lever in efforts to force cleanups and compliance. But if -- as the police and prosecutors insist -- their efforts are squarely aimed at enforcing pollution laws, then why allow justice to be delayed for up to three years or longer after contamination is discovered? Defense attorneys say it would be unheard of in criminal law to let drug dealers, bank robbers and other felons to remain uncharged for long periods, allowing them to continue committing crimes.

 

Secrest notes that the strategy can backfire. Defendants who don't accept plea agreements discover that little work has been done on a case beyond the initial investigation. Prosecutors may resort to last-minute search warrants or ill-directed subpoenas that judges have thrown out. "I really don't think that's the way you ought to do your business," Secrest says.

• Building multiple counts that would make even an Enron auditor blush.

One alleged offense -- an illegal dumping or ground contamination complaint, for example -- can turn into a bonanza of criminal charges and cases that look great on statistical sheets.

One reason is the propensity of prosecutors to charge people simply because of their corporate titles. "They assume merely because somebody works at a company, that they are personally and directly responsible for some alleged environmental infraction, which is simply not the case," Secrest says. "Your status as an employee can frequently bring you into their crosshairs."

And numbers are built up by refiling cases, even those already heard by courts.

A prime example is the December 2000 prosecution of pollution at an L.B. Foster Company facility that had done pipe fabricating work for more than three decades. A February 18, 1998, environmental investigation revealed some oil and lead contamination (like everyone else in earlier decades, the company had used lead-based paint in some work).

Foster viewed itself as a good corporate citizen and spent an estimated $600,000 to remediate the area by October 1998. But on the last day before the statute of limitations was to expire, the company and its yard manager were indicted for knowingly disposing of used oil and hazardous waste. A judge granted a directed acquittal for the yard manager, who was charged only because of his position, not because of any evidence that he disposed of the pollutants long ago. The company received $170,000 in fines and related penalties.

Foster officials thought the prosecution was unwarranted and appealed the verdict. But three weeks later, prosecutors advised them that new indictments were being sought -- charging the exact same offenses, only changing the dates to the day before and the day after the date heard in the previous trial.

"That's absolutely unheard of in criminal cases, even regular prosecutions like those for heroin or homicides," Secrest says. "The most disturbing thing is that they conceded they didn't really have any new evidence…That's just 'piling on.' That's not fair."

He and Tom Hagemann, an attorney representing the company, short- circuited the effort with an emergency meeting with top district attorney's officials. "To their credit, they ultimately decided that wasn't warranted," Secrest says. "And they backed off."

• Legal theories have been stretched.

Hagemann declined to discuss the specifics of the Foster case, but he thinks prosecutors stepped outside legal limits with a far-reaching "passive disposal" theory. It applies to people who haven't polluted or dumped anything -- they are aware only that pollution happened at some time in the past. The premise, first used in civil litigation over Superfund cleanup sites, is that the contamination could conceivably shift underground at some point, thereby creating new pollution. So anyone -- even those not connected to the original polluters -- who knows of pollution could be as criminally liable as the person who disposed of the wastes.

Prosecutors argue that such seemingly drastic measures are needed; otherwise, everyone would just say they didn't dispose of the wastes or order the disposal. Therefore, no one would be held responsible, and the public would be forced to pay huge cleanup costs. The discretion of prosecutors, the other side argues, will prevent abuses of that approach.

However, Hagemann believes passive disposal is headed for the legal junk heap. Even civil courts have rejected the concept for obvious reasons, he says. Hagemann, a former federal prosecutor who has defended about 20 clients here in environmental cases, says the theory could be taken to the harshest extremes -- to the point of a pedestrian walking by an oily sheen of water on a street after rain. Under the theory, "There's nothing that prevents you from getting indicted for that; it's not like you've even got to be the owner" of the property.

"As an old federal prosecutor, I'm just a believer that the criminal system is meant to go after the bad guys, and sometimes that describes polluters," Hagemann says. "I'm just afraid they also go after reasonable corporate citizens."

• With strict liability, almost anyone can be prosecuted.

A baffled Bennett Weise found prosecutors at the door of his Spring-area home on September 1997. They had found 11 bags of trash, most of it household garbage mixed with yard trimmings, at an illegal dump. One bag contained a letter bearing Weise's home address.

 

He could only vaguely remember a day months earlier, when handymen working in his upscale neighborhood had offered to haul off his few bags of lawn discards for $10. There was no cashed check or even a business card. If they told him their names, he'd long since forgotten.

As the months wore on, Weise assumed the officers had gone on to other matters. But at the end of the two-year statute of limitations, Weise was hit with charges of illegal dumping that went far beyond any municipal court citation. He faced up to 180 days in jail and a fine of $2,000. In reality, he could have paid a hefty fine and left it at that, but Weise had a problem with that solution: He didn't believe he'd done anything wrong.

Attorney Cynthia Henley challenged the charge before the First Court of Appeals. At stake was the prosecutors' presumption that the case was one of so-called strict liability -- that they didn't have to prove that a defendant meant or intended for his garbage to become litter, only that it had indeed ended up as litter.

In April 2000, the justices ruled in favor of Weise and Henley, setting off alarms within the district attorney's environmental unit. According to Haseman, to remove prosecutorial discretion would cripple the enforcement effort. "Obviously, our intent is to prosecute the most culpable person we can find," he says. "We don't have any interest in prosecuting residents just because we find their trash somewhere."

But doesn't that description fit Weise?

"If I remember correctly, he refused to cooperate or give officers any information…he really didn't have any explanation for why his trash got from point A to point B."

"Uncooperative?" Henley says in amazement. "In the sense that he couldn't provide the name and phone number of the trash guy? That is absolutely ridiculous."

Henley shudders at the explanations about prosecutorial discretion. She believes they went after Weise simply because he stood up to them. "They are out of control in that they are holding grudges," she says.

As for the strict liability interpretation, the ultraconservative Court of Criminal Appeals eventually upheld such prosecutions in pollution cases. By then, the district attorney's office already had mounted a lobbying campaign that resulted in new state legislation formally adding the language to the law.

Henley wryly notes that the strict liability law ought to spell open season for the D.A.'s office to charge sitting judges for all those campaign signs that are still littering public rights-of-way, long after the last election. "Like my client, those people have the money to pay fines," she says.

• Those who don't enter a plea can be threatened with other investigations.

The Glen Cairne Community Association in northwest Houston hired two men to sweep its streets in January 2000. The association managers, brothers Ransom and Larry Daly, mistakenly told the sweeping firm to dump what they had collected in a vacant lot.

The lot was next to a church, however, and the preacher complained about the high mound of debris. Police cited the sweepers, and the debris was moved to another lot owned by the association. However, that did not satisfy the enforcement team, and soon the Dalys and their management firm were charged.

Fred Johnson, attorney for the Dalys and the association's insurer, Chubb Insurance, says it was obvious that prosecutors merely homed in on the deep pockets of the carrier. They wanted almost $10,000 -- fines, a contribution toward a city fund to clean up a tire dump, $3,000 more to another city fund and the maximum $1,000 each from the Dalys and the firm.

Johnson protested that the sweepers got only a $100 fine each. He says the D.A.'s office next threatened a grand jury investigation into insurance fraud, ostensibly because the management firm had slightly changed its name since it had been insured.

"There was just something about that case that never seemed right from the insurance standpoint," Haseman says. The hefty fines were sought at least in part because the Dalys had been uncooperative and had thought they could merely spread the debris, which included toxic materials, over a vacant lot near a children's area, he says.

"They did enter pleas on all those cases, and they were resolved without trial," Haseman proclaims with satisfaction.

"Yes," Johnson says. "It took essentially telling them, 'We will go to trial, and we will not back down,' before we could get a reasonable resolution." The result, he says, were fines of $100 each -- just what the defense initially proposed.

 

"It would be great if the Ship Channel and all the other really polluting areas had been cleaned up and they were just down to litterers or guys who dump weeds," Johnson says of the prosecutorial priorities. "But I really don't believe that's the case."

• Laws allow penalties that far exceed the crime.

Attorney Deborah Keyser became the court-appointed lawyer for a man named David who had just worked his way up from being homeless. He volunteered to help a friend restore his car after it was flooded in Tropical Storm Allison. They'd gone to a Montrose auto supply store and bought transmission fluid and a plastic drain pan. He drained the auto's fluid in the parking lot using the pan, although he spilled some of it, less than a quart. While he was trying to hose it down, police appeared out of nowhere and arrested him for violation of the used oil act. A prior felony assault conviction in California upped the maximum penalty to two to 20 years in prison and a $100,000 fine.

"What?" Keyser says she replied when told of the punishment range. "We're talking prison time for a quart of transmission fluid? I pulled the law, and my jaw just dropped." Keyser managed to get it reduced to $1,000, with state District Judge Carol Davies giving David $50 credit for each of the 11 days he spent in jail after the arrest.

Now this polluter is selling flowers at Montrose nightspots, trying to retire the remaining $450.

Haseman, the head of the pollution prosecution team, dismisses the complaints as inaccurate or merely carping by defense lawyers. He points out that his office prosecutes more than 600 cases yearly, so there are bound to be isolated gripes.

"You're certainly not going to make every defendant happy. But that's not my job," he says. "If a defendant's happy, then I'm not doing my job."


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