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.

Winston says Gilbert also violated a fundamental rule of police work: Don't surprise the prosecutor. "Was I surprised [by this case]? How about all the time," he says. "They went out and did all this without me knowing about it, and I had to react to it. I wasn't brought in until after the sting."

For both Winston and the investigators, yet another factor led to the abandonment of the case. During plea negotiations, investigators and the BER are supposed to take part in the process, mainly because any fines agreed upon have to cover costs of cleaning up a site. When Winston told the investigators about the $25,000 offer from the Rojases' attorneys, they balked, saying it would cover only half the costs. Next thing they knew, Winston had dropped the case.

Winston would not admit that the failed plea agreement had anything to do with his decision. But at least some of the investigators feel that the very nature of environmental investigations creates conflicts between them and prosecutors in general.

"Some people try to take a simplistic view," says Stilwell. "They say that the criminal process should not cross over into the economic arena, in the same way that a murderer's punishment doesn't necessarily go into the economic consequences of the crime.

"But another view is that [dumping] is an economic crime to begin with, and so those damage considerations need to be looked at in terms of restitution to the public. And, anyway, why shouldn't my opinion matter? The public has entrusted me with a particular job to do, to enforce the environmental regulations."

But that can make it difficult for prosecutors who, in dealing with other types of crimes, don't have to answer to the cops when constructing plea arrangements. "It is an unusual situation," Winston admits. "Sometimes it's frustrating."

At any rate, after Winston declined to prosecute the case, Gilbert didn't hesitate to present it to federal prosecutors.

On March 4, more than two years after the original sting operation had taken place, Gilbert's work finally paid off with a letter from federal prosecutor Diane Patrick. "Dear Guy," the letter began. "This is to advise that we are proceeding to close our file on this case in light of the defendant's sentencing on February 23, 1999.... I also received on this date a check in the amount of $10,000 as payment towards the court-ordered restitution.... Many thanks to you and Phillip Shoemaker for your outstanding efforts in this case. I'm so glad we all had an opportunity to work together, and I look forward to many more such occasions!"

And last month Terry Edwards, DEP regional administrator, sent this e-mail to his emergency response team: "Looks like the good guys finally won one. Way to go, everybody."

At this late date, with his prosecution secured, Gilbert is careful to avoid direct criticism of Winston. "I learned a long time ago that you just have to concentrate on how you feel about your own job. You can't rely on anybody else," he says.

But perhaps the person with the most important stake in seeing the case prosecuted is Phillip Shoemaker, the man who was sloshed with the toxins when loading the drums. As soon as he got back to the BER headquarters, he was stripped and decontaminated with chemical soap, after which a blood test showed no signs of ingestion.

Still, at the insistence of his boss, the plea agreement contains a provision that, if Shoemaker should ever succumb to any kind of sickness that can be traced to his loading of the poisonous drums, then the Rojases have to pay his medical bills. All of them. For life.

Contact Paul Belden at his e-mail address:

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