In re Dean

In re Dean

Opinion

 [*392]  PER CURIAM:

In the related criminal  [**2] proceeding, twelve of the victims asked the district court to reject the plea agreement, alleging violations of the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771. The district court denied the request. See United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 U.S. Dist. LEXIS 12893 (S.D. Tex. Feb. 21, 2008). The victims petition for writ of mandamus with the prayer that "[t]he decision of the district court should be reversed and the case remanded with instructions that the plea agreement [not be] accepted and the parties are permitted to proceed as they determine--so long as it is in a way that respects crime victims' rights." We find a statutory violation but, for reasons we explain, we deny relief.

The factual background and the judicial events that led to the mandamus petition are cogently set forth in the district court's Memorandum and Order, 2008 U.S. Dist. LEXIS 12893 at *3-*18, in the criminal case. As there explained, an explosion at a refinery operated by the criminal defendant, BP Products North America Inc. ("BP"), killed fifteen and injured more than 170. Extensive civil litigation ensued.

The Department of Justice investigated the possibility of federal criminal violations. Before  [**3] bringing any charges, the government, on October 18, 2007, filed a sealed ex parte motion for "an order outlining the procedures to be followed under the [CVRA]." The government announced that a plea agreement was expected to be signed in about a week and that because of the number of victims, "consulting the victims prior to reaching a plea agreement would not be practicable" and that notifying the victims would result in media coverage that "could impair the plea negotiation process and may prejudice the case in the event that no plea is reached."

As explained in the district court's order, the government, in its sealed ex parte motion, made specific recommendations for how the court should fashion a "reasonable procedure" under the CVRA's  [*393]  multiple crime victim exception. The district court, per an order signed by a district judge who had been assigned to the case in its status as a miscellaneous matter, see 2008 U.S. Dist. LEXIS 12893 at *4 n.1, responded with impressive speed, issuing on that same day a sealed order finding that notification to victims in advance of the public announcement of a plea agreement was impracticable because of the "large number of victims" and because, on account of the extensive  [**4] media coverage, "any public notification of a potential criminal disposition resulting from the government's investigation [of the] explosion would prejudice [BP] and could impair the plea negotiation process and may prejudice the case in the event that no plea is reached." The ex parte order prohibited the government from notifying victims of a potential plea agreement until one had been executed; it directed that once an agreement had been signed, the government "shall provide reasonable notice to all identifiable victims and afford the victims the rights set forth [in the CVRA] prior to actual entry of the guilty plea . . . ."

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