The Jury Charge
You must begin working on the jury charge at the time the indictment is handed down and you must continually refine it up through the trial. During the preparation of the matter for trial, the jury instructions were considered to be one of the key components of trial preparation. The Environmental Enforcement and Crimes Committee of the American Bar Association’s Section of Environment Energy and Resources is working on a public service project to get jury charges on its web page (defense submission, Government submission and as given). The web page is http://www.abanet.org/environ/committees/environcrimes/. That is a good place to start.
The jury charge will pose some problems. While there is a developing body of law regarding the jury charge in and environmental crime smatter, there are no pattern jury instructions for an environmental crimes case. This leaves grounds for arguing a jury charge on mens rea issues. For instance, the definition of the mens rea under RCRA is “knowing.” Exactly what does that mean? Under RCRA, before a jury can convict an individual or entity of a crime, it has to be proven there was knowing conduct. You should request that the Court, in its jury instructions, instruct the jury that there should not be a conviction unless the defendant “knew” that there was a regulation which stated that he/she was engaged in the activity prohibited (or required) under RCRA. There was a split in the Circuits regarding this mens rea requirement.
Under the CWA, the mens rea is “negligence.” Is it a gross negligence instruction that is required (defense position)? Is it a mere negligence standard (Government position)? In the Baytank matter, a gross negligence instruction was given. The jury was instructed as follows: “Negligently means: a) that a reasonable person in a position similar to the defendant knew or should have known that the conduct posed a substantial, unjustified risk of a discharge of a pollutant into navigable waters and b) that the defendant’s failure to perceive the risk was a gross deviation from the standard of care of a reasonable person in a similar situation.”
In one example, in the Baytank matter, we submitted a 42 paged proposed jury instructions and interrogatories covering all elements in the 37-count indictment. When the case finally went to the jury, the special instructions were reduced to nine pages, and the Court’s instructions to the jury were reduced to seven pages.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii