The law as a force for change

My last column introduced the Farmers Export grain elevator disaster. Eighteen people were killed in a grain dust explosion that destroyed a 20-story concrete structure.

Now, when we hear about an explosion we’re likely to think intended act. But here there was no terrorism, no high explosives, no intent to kill and maim. It was an accident, pure and simple.

But as Oscar Wilde famously said, “The truth is rarely pure and never simple.” If an accident was predictable, even arguably foreseeable, was it really an accident?

Murder is wrong. Everybody knows that. It’s one of the Ten Commandments. It’s a crime and always has been. But other things that may be wrong have not always been so clearly viewed as criminal.

White-collar crime is a relatively recent vintage. Until fairly recently, the common view was that “criminals” were ruffians, not men in suits and ties. Non- violent or victimless (in the direct sense) actions were hard for many to accept as crimes.

Health and safety was one of the slowest areas to change. Traditionally, if a health and safety case made it to court at all, it was as a civil lawsuit, brought either by the government or injured victims against the corporate entity responsible. In most instances, that really meant the entity’s insurance company. After all, it was just about money.

One result was that the managers on the ground, the people who were most likely to have seen, ignored or even directed the problem, and who were most likely to be able to keep it from happening again, were several layers away from any litigation. In the months or years it takes a case to wind through the system, the managers on the ground had been back hard at work, and the incident or issue was a distant memory. As a force for change, it often was too remote.

In 1970, there was a major shift. Congress created the Occupational Safety and Health Administration, and that law included criminal penalties against individuals for serious violations that caused death. That meant jail for a real person, not just payments from a distant insurer.

As with many new laws, there were few cases brought, and most federal prosecutors didn’t even know the law existed. It was too new, too different.

Ten years later, the Department of Justice decided that the law was on the books for a reason, and it should be used in appropriate, serious cases. But how to convince busy prosecutors around the country to add this new law and concept to their burdens?

The DOJ’s Criminal Division decided to create a unit of attorneys specializing in health and safety cases, based in Washington, D.C., but traveling everywhere to offer support and encouragement to local prosecutors to bring criminal health and safety cases. One year out of law school, I became part of that unit.

Almost every case we brought was a shock to the defendants and people in similar positions elsewhere. That’s not the way it had worked. Criminal? OK, maybe someone screwed up. Maybe they could have been more careful. It was a shame that someone (or many someones) died as a result. But no one intended to kill them, so is that really criminal?

The DOJ wanted to get people’s attention. In many cases, it worked.

So, when 54 people died within five days in the two grain dust explosions that December, OSHA came to the DOJ and said, essentially: “We have a problem in the grain elevator business, and whatever we’re doing isn’t enough.”

The DOJ and the U.S. Attorney’s Office in Houston agreed to open a grand jury investigation, with our little unit providing support. Dick Tallman, a fellow member of the unit, started the ball rolling, then passed it to me when he eventually left to become a distinguished federal judge.

The investigation itself was a shock to the industry: grain elevator employees and managers, company executives, and government regulators being summoned to testify before a federal grand jury and questioned by DOJ attorneys. But the real shock came when the two top managers of the Farmers Export grain elevators were indicted — individually — for criminal violations of the OSHA Act, with potential penalties including fines and jail on each count.

The world had changed. It was time — long past time for the 54 dead — to look at health and safety in the grain industry in a whole new light, and maybe far beyond the grain industry as well.

The law looks at each case individually, as it should. But sometimes the law, and all those involved in it, can and should be a force for change. Change was clearly needed here. Maybe, just maybe, litigation could be an answer.

Daniel I. Small­­ is a litigation partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of “Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers,” published this year by the American Bar Association. The above column is adapted from “Lessons Learned,” with permission of the ABA.