Toxic Justice

Investigators caught Manuel E. Rojas and his company attempting to dump toxins in the Everglades. Sounds like a simple case to prosecute. It wasn't.

But the case never went to court. After six months no one was arrested, and no one was arraigned. Winston says he conveyed a plea-bargain offer to the Rojases' attorneys: a felony conviction and an $80,000 fine. The Rojases' attorneys suggested a $25,000 fine instead. But Winston never followed up to this response.

DEP officials were dumbfounded. "When someone doesn't go forward on a case, you like to know why," says Bill Keenan, BER director. "Our people were angry. We felt we had a solid case."

Nevertheless, the case sat idle for the next six months. So Gilbert and Shoemaker made contacts with federal investigators to sound out the possibility of presenting the case to the U.S. Attorney's Office. On December 18, 1997, Gilbert sat down with U.S. Attorney Diane Patrick, who "expressed interest in prosecuting the case for the Federal Government," Gilbert later reported. The case was alive again.

At 6:15 on the morning of August 3, 1998, Gilbert, Shoemaker, and several other state and federal agents knocked on the front door of Manuel E. Rojas' opulent house in Miami. In their hands they had an arrest warrant. From there the agents drove north to Weston, where they arrested Manuel J. Rojas. Both father and son were booked and held at the Federal Detention Center in Miami.

Four months later the elder Rojas, along with his corporation, pleaded guilty to federal charges of conspiracy and violation of federal hazardous-waste laws. On February 23 they were sentenced to four years of probation and fined $153,048 -- $100,000 as punitive damages, and the remainder as restitution to the DEP for the cleanup.

What went wrong? If the feds were able to secure a tough plea bargain, why did the state case sink so quickly?

Punishment for an environmental violation is usually a fine levied by a county, state, or federal regulatory agency. This makes sense, in a way, because businesses pollute for financial reasons. It's a simple cost-benefit calculation: Legally disposing of even a small amount of hazardous material can cost tens of thousands of dollars. Because the incentive is financial, the penalty should also be financial.

But the question for environmental investigators and prosecutors becomes: When should a polluting case be dealt with criminally instead of civilly? Opinions differ. Especially between those responsible for investigating environmental crimes and those prosecuting them.

"Is it a lesser crime if you kill one person rather than 50 people?" asks Robin Greenwald, an attorney with the Environmental Crimes Section of the U.S. Department of Justice. "That is a question that's frequently asked of environmental prosecutors, and the answer is, 'No, they're just different crimes. They're both important.'"

But in the real world, choices have to be made. "You have to have a very solid case to proceed criminally," says Ed Walsh, the assistant state attorney in charge of environmental prosecutions for Broward County. "Consider just one aspect of a case: the lab work. Was the lab certified to conduct this type of testing? Was the equipment calibrated correctly? When? And can you prove it? Who was the lab technician? What were his or her qualifications? Was the chain of custody followed? Can you prove it? You remember the O.J. trial, right? A good defense attorney can tear your case to shreds if you don't have every single detail nailed down."

Another area of controversy concerns a practice that Walsh and others refer to as "sending a bad-guy letter." "Those are the kind of letters in which the prosecutor sends a letter out to the target, basically saying, 'We have reason to believe you're involved in a crime, and we'd like you to come in and talk to us about it,'" says Joe Stilwell, director of DERM. Such letters have their uses, especially in courts with heavy caseloads, but "if I have a very well investigated, extremely strong case against a [polluter], that might not be a good letter to send," says Stilwell.

But those who, like Porthouse, have to deal with the dangerous messes others leave behind oppose treating pollution cases as regulatory matters. "Is it an economic matter when you have a drum leaking heavy metals into a mangrove swamp or a manatee breeding area? You tell me," she says. "Is it an economic matter when a child goes out and climbs onto an abandoned drum filled with hazardous material? Or falls in and dies? You tell me."

Ultimately those decisions aren't the investigators' calls; they come under the heading of prosecutorial discretion. Winston's own opinion is that Gilbert had his priorities backwards. Henry had a criminal record (the Rojases didn't), and Winston wanted him behind bars. "I thought it was patently unfair to go after Rojas by cutting a deal with [Henry]," he explains. "I told them, 'First you bring me [Henry], then we'll talk about the Rojases."

Gilbert argues that a deal was never made with Henry. Although he was used to help build a case against the Rojases, Henry was never needed to make that case in court. In fact, by the time federal prosecutors took over the Rojas case, Henry had disappeared. Gilbert speculates that Henry sensed that he had gone from being the tool of the DEP to its target. "We were able to connect him with the renting of a Ryder truck on the same day that the drums were purportedly removed from the Hialeah warehouse," Gilbert admits. (Henry is currently being sought on a warrant related to that incident.)

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