On September 30, Judge Doherty of the United States District Court for the Western District of Louisiana handed down a decision in Vidrine v. United States awarding $1.7 million in damages for a malicious prosecution. The facts of what happened are simply appalling, and they deserve wider attention.
First, the background. Hubert Vidrine had been charged with knowingly storing hazardous waste materials without a permit for storing used oil at a refinery site. But there were two big problems with the case: It turned out that there was little evidence that the oil counted as hazardous waste, and no evidence that Vidrine had knowledge of what was happening. The government ended up moving to dismiss its own case, and later Vidrine filed an action under the Federal Tort Claims Act alleging that he was the victim of malicious prosecution. The case of malicious prosecution focused on misconduct by EPA Technical and Regulatory Expert Keith Phillips, who was one of the agents on the case and was responsible for developing the case against Vidrine.
In her decision, Judge Doherty found that Agent Phillips intentionally misled the prosecutor, his bosses, and the court as to the evidence against Vidrine, all to enable a prosecution against Vidrine even though there was no real evidence against him. Judge Doherty writes:
Had the AUSA had been given all the facts by Phillips and Barnhill (both good and bad, and excluding half-truths), or had the [agent's formal report of his interviews] been more complete and timely provided to the AUSA, and had a reasonable interpretation of the applicable regulations been provided to the AUSA and the grand jury by Phillips, and had Agent Phillips testified truthfully to the grand jury, this Court finds a very different result likely would have ensued: Hubert Vidrine would not have been indicted. For reasons that will never be known by anyone other than Agent Phillips, Agent Phillips was not content to merely “gather the facts and let the facts themselves either support or not support the indictment” as he testified one should do. Rather, Agent Phillips, either deliberately, or with reckless disregard for the truth, provided false testimony to the grand jury in order to secure an indictment against Hubert Vidrine, on at least two occasions, and permeated the entire investigation with omissions, half-truths, overstatements, inflammatory language, misstatements, patent falsehoods, and tortured readings of regulations.
What ultimately secured an indictment against Hubert Vidrine was not Mike Franklin, as Keith Phillips testified – it was Keith Phillips’ and Phillips’ “tweaking” of the Mike Franklin story to create facts, as Agent Phillips wanted to see them. Given the inherent problems, omissions and glaringly obvious weakness of Mike Franklin and his information, Agent Phillips and Barnhill’s omission of those problems, and Phillips’ dogged pursuit of Hubert Vidrine, this Court is left with the question, “Why?”
Perhaps the most remarkable part of the Vidrine malicious prosecution case is Judge Doherty’s answer to the “why” question. Here’s the eye-popping two paragraphs, with emphasis added:
One of the more distressing allegations made at trial, involved allegations of Agent Phillips’ sexual, extra-marital affair (and its subsequent “cover up”) with Agent Barnhill. The evidence strongly indicated Agent Phillips deliberately used his investigation and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his extra-marital affair with Agent Barnhill, and perhaps, to exert improper influence over the manner in which she investigated and reported upon this case. Agent Barnhill candidly testified that she and Agent Phillips began a physical, sexual relationship while assigned to this matter, which lasted from approximately 1996 until January or February 2001. Agent Barnhill testified she and Agent Phillips were only physically intimate when working together on the Vidrine case – in other words, they did not meet to pursue their sexual relations on occasions when they were not working the case together. Thus, the case granted the opportunity for those rendez-vous, as well as providing justification for Agent Phillips wife.
During the investigation and prosecution, Agent Barnhill, who was single, lived in South Louisiana; Agent Phillips, who was married, lived in Dallas, Texas with his wife. Prior to and at trial, plaintiffs’ counsel consistently argued Agent Phillips used the Vidrine investigation as a cover, excuse and opportunity to facilitate his illicit affair with Agent Barnhill and to hide the affair from his wife. Plaintiffs consistently argued Keith Phillips manufactured a case, both in law and fact, against Hubert Vidrine, and carefully fed the AUSA and his supervisors only the information which would further that end and perpetuate the case, all to promote access to Agent Barnhill and perpetuate and conceal their illicit affair. Regrettably, the Court agrees with plaintiffs: this inappropriate and unprofessional behavior likely was, at least in part (if not in whole) a motivation for Agent Phillips’ continued pursuit of Hubert Vidrine, without probable cause, and certainly with a complete and total reckless disregard of Hubert Vidrine’s rights.
The Court concludes:
[T]his court finds Agent Phillips testimony, conduct and documentation illustrate a deliberate patten of disregard for oaths taken, truth of the matter involved, wholly lacking in intellectual honesty, and exhibiting a deliberate intent to mislead all involved, particularly the prosecutors with whom he worked and who were relying upon his investigation and technical expertise in order to evaluate their case. Agent Phillips has displayed the very worst example of abuse and misuse of the power and trust bestowed upon a governmental agent, and has brought great shame upon the agency which had entrusted him with that power, responsibility, and authority.
Wow again. Kudos to the Washington Legal Foundation for its pro bono work representing Vidrine.
UPDATE: I see that Agent Phillips received his due in the case. According to a DOJ press release dated October 4, Phillips recent pled guilty to perjury and obstruction:
A former special agent with the Environmental Protection Agency (EPA), Criminal Investigation Division (CID) in Dallas has pleaded guilty to lying under oath and obstructing justice, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division and Inspector General Arthur A. Elkins Jr. of the EPA’s Office of the Inspector General (OIG).
Keith Phillips, 61, of Kent, Texas, pleaded guilty yesterday before U.S. District Judge Richard T. Haik Sr. in the Western District of Louisiana to a two-count indictment charging him with obstruction of justice and perjury. The charges stemmed from his sworn testimony in relation to a case that was pending in the Western District of Louisiana.
. . . Phillips faces a maximum of 10 years in prison and a fine of $250,000 on the obstruction of justice count, and five years in prison and a fine of $250,000 on the perjury count. A sentencing date has not yet been scheduled by the court.