DOJ Won't Seek ‘Preordained Stories' in New Enforcement Push

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By Stephen Lee

Jan. 25 — Countering speculation from former staffers, the Department of Justice won't make a special effort to find worker safety violations to make highly technical environmental criminal cases more emotionally powerful to juries, a high-ranking agency official told Bloomberg BNA.

Instead, the department will hew closely to the facts of each case, Andrew Goldsmith, Justice's Associate Deputy Attorney General, said.

Some former Justice staffers have suggested the department would try to pair its environmental cases with emotionally wrenching worker safety violations under a new prosecution plan that brings labor charges within the sphere of Justice's Environment and Natural Resources Division (06 DEN A-6, 1/11/16).

“The prosecutors will play the sympathy card,” Paul Larkin, a former Justice staff member under presidents Ronald Reagan and George H.W. Bush and now a senior legal research fellow at the Heritage Foundation, told Bloomberg BNA in early January. “They will try to engender sympathy by saying, ‘This is a particular John Doe who got hurt by this [environmental violation].' ”

A ‘Sinister Interpretation.'

Goldsmith brushed off the suggestion.

“There's a potentially sinister interpretation of that, to suggest we're trying to put the old widow in front of the jury to gin up inappropriate prejudice,” Goldsmith said. “I know that's not the case. The guiding principle is, we're going to go where the facts take us. We're not going to have some preordained story and then shoehorn the facts into that story.”

For example, he noted a 2006 district court ruling, which he described as a hallmark environmental and worker safety case, in which a New Jersey cast-iron pipe maker and four of its managers were found guilty on multiple felony counts (United States v. Atl. States Cast Iron Pipe Co., 2006 BL 89347 (D.N.J. 2006)).

New Jersey Case a Hallmark

In that case, the evidence showed “a history of environmental violations, workplace injuries and fatalities, and activities intended to obstruct justice,” according to a 2006 Justice Department statement.

Justice lawyers merely presented the evidence the department had gathered, which was compelling enough on its face to yield convictions, Goldsmith said.

“We didn't go in and say, ‘It would be great if we could find some evidence of X,' ” he said.

Moreover, federal rules bar the introduction of evidence that doesn't have probative value and could unfairly prejudice a jury.

“There is a mechanism in the rules of evidence where, if prosecutors were sitting down, saying, ‘We're going to put these homicide photos in, they're not relevant to anything but we want to prejudice the jury,' that's not going to come into evidence,” Goldsmith said.

Emotional Evidence Can Be Helpful

Nevertheless, Goldsmith did acknowledge that emotionally moving evidence can be helpful in securing prosecutions.

To illustrate, he pointed to a 2002 federal appeals decision against an Oklahoma trucking company that had illegally injected wastewater into disposal wells and later tried to cover it up (United States v. Overholt, 307 F.3d 1231 (10th Cir. 2002)).

One key piece of evidence that helped seal the case, Goldsmith said, was that one of the firm's truckers, who had open sores on his skin, had been exposed to a chlorinated solvent. Jury members weighing the environmental evidence were shaken by the suggestion that the company didn't care about its own workers, according to Goldsmith.

“That was yet another example of, you charge a case where the facts take you,” Goldsmith said. “And if something resonates with the jury, well, it resonates with the jury.”

Overcoming Jury Nullification

He also said the emotional power that worker safety cases pack can help prosecutors overcome the phenomenon of “jury nullification,” in which jurors decide that, even though a defendant is guilty, he or she shouldn't be punished for the offense because they consider the charges—which, in environmental cases, can be difficult for a layperson to understand—to be insignificant.

“If you've ever watched one of these cases, and it's strictly an environmental parts-per-million case, it is not uncommon for defense attorneys to say to the jury—although you really can't say it in this way—‘Yeah, my client committed the crime, but so what? You as the jury should stand up and say, we're not going to find him guilty because we don't care,' ” Goldsmith said. “And I don't think a defense attorney is going to have that argument if you have maimed or killed workers.”

Bad Employers Tagged

Under the Justice Department's plan, unveiled Dec. 17, the agency's Environment and Natural Resources Division will examine cases brought to it by the Occupational Safety and Health Administration to determine whether other charges can be brought.

Goldsmith said the plan is based on the belief that bad employers don't isolate their unlawful conduct to specific activities.

“If you have a company that is willing to cut corners when it comes to worker protection, it's a near certainty they're going to cut corners when it comes to the environment,” Goldsmith said.

Moreover, many environmental crimes also endanger workers, he said.

Management attorneys have predicted that the first employers brought under Justice's plan will vigorously contest the charges in court, possibly arguing that Congress only intended the Occupational Safety and Health Act to make employers abate hazards.

“[The statute] is not designed to throw employers into jail,” said Baruch Fellner of Gibson, Dunn & Crutcher LLP. “It's about getting the hazards fixed.”

Connection to Earlier DOJ Effort

Goldsmith further acknowledged that the new plan is connected to Deputy Attorney General Sally Yates' effort, announced in September 2015, to criminally prosecute individual executives, not just the corporations for which they work .

“As a career prosecutor, [Yates] recognizes that the way you get people to change their behavior, the way you deter others, is not by simply prosecuting corporations and then allowing them to pay a fine and pass it on to their shareholders as the cost of doing business,” said Goldsmith. “The way you get people to change their behavior in a corporate setting is for people who are, in fact, criminally responsible to recognize that the government may look to prosecute them, and indeed they may end up going to jail based on their conduct.”

Some business lawyers have argued that Justice's focus on criminalizing individual officers is an overreach because corporate officers can't be expected to know what happens at their far-flung worksites.

But Goldsmith dismissed those arguments, saying Justice won't pursue cases in which it can't prove that the person in question had the requisite knowledge. Such was the case in the recent federal prosecution of Don Blankenship, the former chief executive of Massey Energy, who was found guilty Dec. 3 of one count of conspiring to violate federal mine safety regulations .

Not the First Time

The current effort is not the first time Justice has tried to combine environmental and worker safety crimes. In the early 2000s, Goldsmith, along with David Uhlmann, then-chief of the Environmental Crimes Section, and press aide Dana Perino, who went on to serve as President George W. Bush's president secretary, set out to combine the resources of the Environmental Protection Agency, OSHA, the Federal Bureau of Investigation and the Justice Department, Goldsmith said.

That effort included educating officials at each agency about teaming up with one another, he said.

But the new plan is more concrete, according to Goldsmith.

“Instead of this being what you might refer to as a grassroots effort, instead of being this small group of prosecutors in the Environmental Crimes Section that has to go into districts and convince the U.S. Attorney's office this is a good idea that has to rely on almost word of mouth, this is now a formal initiative where the Deputy Attorney General issues a memo to all U.S. Attorneys,” Goldsmith said.

Early Enthusiasm

So far, Justice's field attorneys seem “very enthusiastic” about the new program, Goldsmith said.

“Not to overstate the obvious, but cases where you have real victims, and identifiable victims, and particularly where those victims have been taken advantage of by their employers—those are compelling cases,” he said. “They're cases that are, in part, the reason why we do this job. We're trying to do justice. And I will say, from having tried Atlantic States, it makes you feel particularly good about what you do when you believe you've brought justice to people who've been victimized.”

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To contact the editor responsible for this story: Larry Pearl at

For More Information 
The memorandum of understanding between the Departments of Labor and Justice is available at