A Very Interesting Thing Happened on the Way to Justice


This particular interesting thing relates to Exxon and the ages-ago
Exxon Valdez oil spill across a goodly part of the coast of Alaska.
Seems their captain went aground with a tanker and, the next thing we
knew, people were up there mopping ecosystems and sponging (as best
they could) crude oil off the feathers of various and sundry birds.

Exxonvaldezbird
This particular interesting thing relates to Exxon and the ages-ago
Exxon Valdez oil spill across a goodly part of the coast of Alaska.
Seems their captain went aground with a tanker and, the next thing we
knew, people were up there mopping ecosystems and sponging (as best
they could) crude oil off the feathers of various and sundry birds.

Before Exxon went to trial, they agreed to settle a laundry-list of damage claims, that included

  • Paying the State of Alaska and the United States $900 million
    over a 10-year period. This money would be used for restoration and
    would be administered by six government Trustees; three federal, three
    state.
  • In settlement of criminal charges, Exxon would pay a fine of $250
    million. Two "restitution funds" of $50 million each were established,
    one under state control and one under federal authority.
  • Against strong opposition from many Alaskans, $125 million of the
    balance was forgiven due to Exxon’s cooperation during the cleanup, and
    upgraded safety procedures to prevent a reoccurrence. The remaining $50
    million was divided between the Victims of Crime Act account ($13
    million) and the North American Wetlands Conservation Fund ($12
    million).

Exxonspill
That’s about $1.125 billion over ten years for a company (at that time) earning about $16 billion a year. So much for the agreed-upon damages.

There were punitive damages sought and exhibits, testimony
and other good things spread out in front of a jury—a veritable
smorgasbord of proofs attended by experts on both sides of the table,
tucking in to the evidential goodies. Punitive damages are money
amounts awarded because a company or person is charged able to avoid the damage they caused—and didn’t.

The jury was selected as juries are, from among registered voters.
The process provides ample opportunity for either side to object (or
strike without objection) their requisite number of jurors. It’s
imperfect, but as perfect as it can be made.

Exxoncleanup
The Exxon Valdez trial, 12 years past now, took a long time. Exxon
defended itself as best it could from charges of bad captaining and
creating a hell of a gooey mess along some 1,500 miles of Alaskan
coast. After all the testimony was presented

  • The jury was instructed by the judge of the choices open to them
  • That same jury deliberated, well or badly, as juries are wont to do
  • The jury found, as they were allowed to find, an award of punitive damages in the amount of $5 billion

and then the fun began. 

Justice
We live with the myth of trial by jury in this country, but it ain’t necessarily so. What we have is trial by appeal, where the process is only accessible to the rich. The jury is composed of appointed judges, once one has risen above the lower courts. These judges are appointed by (surprise!) the rich.

If you’re rich, or powerful or (best of both worlds) rich and
powerful, the storied juries of our mythology are merely a starting
point. Winners and losers walk out of court frowning or smiling at the
jury’s decision and the real judgmental process begins—that of the topsy-turvy world of the appellate courts.

Money_3
Just a quick word about the appellate process. In order to appeal a verdict, the individual (or corporation) has to put up an amount equal to the total award
in escrow (a third party who holds the money). In essence, that means
if you are of moderate means, you are withheld from the appeal process
by circumstance. Even if you are the loser, to appeal, you must put up an amount equal to what the winner won. Justice may be blind, but it peeks out of the corner of its blindfold in the direction of the wealthy.

Interestingly, for the 12 years the Exxon award has been bouncing
around the appellate courts, it’s been earning a dandy amount of
interest. $90,000 an hour while in escrow, about $2 million a day, $800 million a year and that means $9.6 billion so far.

How punitive is that, for a company that earned $36 billion last year?

But that’s not my complaint. The rich live by different rules and
always have. My complaint is that we have justice in this country, not by a jury of our peers, as has long been taught in civics classes, but by justices appointed to various levels of appellate courts.
We don’t even elect these guys. They are appointed by governors and
presidents and they get the job because they play ball with the power
structure.

The ability to appeal judgments made in error is a cornerstone of American justice. But the overturn of jury awards just because the loser thinks the amount is too high
disarms us in punishing the guilty, particularly when the guilty are
rich. Tobacco and pharmaceutical companies come to mind, as do
investment banks and savings and loan organizations.

To be disarmed in the very courts where we seek redress is to be
made a mockery. The current halving of Exxon damages is just such a
mockery. In dissent, appellate court Judge James Browning ruled that $5
billion verdict should remain intact, writing there ”is no principled means by which this award should be reduced.”

Adding insult to injury, Exxon is presently considering the appeal of even that award.
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Media comment;

DICK CHENEY’S FINGERPRINTS, the book, by Jim Freeman

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