I have been working on a pro bono crime victims' rights case, involving the Texas City oil refinery disaster. Criminal negligence by BP Products led to an explosion that killed 15 workers and injured more than 170. The Justice Department and BP reached a plea agreement under which the company would plead to a felony and pay $50 million. The victims of the crime have objected to the plea, arguing that the fine was inadequate given the harm frmo the crime and that the plea failed to provide sufficient assurance for the future safety of workers at the refinery.

The Fifth Circuit has now ruled on the victims appeal (available here), finding that the crime victims' rights were violated by the U.S. Attorney’s Office when it reached a plea bargain without conferring with the victims. The Fifth Circuit, however, refused to block the plea deal, remanding to the district court for further proceedings.

In its decision, the Fifth Circuit found that the U.S. Attorney’s Office had violated the Crime Victims Rights Act (CVRA) in reaching the agreement. In October 2007, the U.S. Attorney’s Office had obtained an ex parte order from the district court relieving the Office of any need to notify the victims before reaching the plea. The Fifth Circuit held that “it was contrary to the provisions of the CVRA for the [district] court to permit and employ the ex parte proceedings that have taken place – proceedings that have no precedent, as far as we can determine.” Instead, the Fifth Circuit stated that the U.S. Attorney’s Office “should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain.”

The Fifth Circuit concluded that “the unfortunate fact is that the plea agreement was reached without the victims’ being able to participate by conferring in advance.” However, the Fifth Circuit remanded the case to the district court for further proceedings in which the district court “will fully consider the victims’ objections [to the proposed plea bargain] and concerns in deciding whether the plea agreement should be accepted.”

Along with the other attorneys working on the case, I will filing a petition for rehearing en banc with the Fifth Circuit in light of "circuit split" that the decision deepens. The Fifth Circuit concluded that it did not have to give the victims any relief — even though their rights were violated — because the CVRA provides for relief by way of a mandamus petition. The Fifth Circuit, citing a Tenth Circuit decision, held that mandamus petitions are subject to review only for "clear and indisputable" errors. Even then, mandamus relief is purely prudential, concluded the Fifth Circuit.

But the Second and Ninth Circuits have reached the opposite conclusion — that crime victims are entitled to ordinary appellate protection of their rights.

The Second and Ninth Circuit conclusions are obviously correct if one looks at the legislative history of the CVRA. One of the two co-sponsors of the CVRA stated the law would create

“a new use of a very old procedure, the writ of mandamus. This provision will establish a procedure where a crime victim can, in essence, immediately appeal a denial of their rights by a trial court to the court of appeals . . . . Simply put, the mandamus procedure allows an appellate court to take timely action to ensure that the trial court follows the rule of law set out in this statute.”

150 CONG. REC. S4262 (statement of Sen. Feinstein) (emphases added). Rejecting the cornerstone of the panel’s holding that the decision whether to grant relief for a victim is prudential one, the other of the CVRA’s two co-sponsors stated that:

"[W]hile mandamus is generally discretionary, this provision [18 U.S.C. § 3771(d)(3)] means that courts must review these cases. Appellate review of denials of victims’ rights is just as important as the initial assertion of a victim’s right. This provision ensures review and encourages courts to broadly defend the victims' rights. Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country’s appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim’s rights.

150 CONG. REC. at S10912 (statement of Sen. Kyl) (emphases added).

Surprisingly, the panel of the Fifth Circuit did not discuss this legislative history in deciding that it did not have give the victims any relief. Hopefully the full Fifth Circuit will see things differently on the petition for rehearing. Crime victims deserve the same protection in the appellate courts as criminal defendants and other litigants receive.