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Legal Process surrounding the OIG Report
on the CRAMER FIRE Fatalities.

Posted on Theysaid on 11/5/04 by Mellie

Hi Tahoe Terrie, last time the question of legal process came up, I did a some research, but decided not to send it in it at that time. Seemed only fair to let the process take its course. Here's what I found out in early September:

"Can anyone fill us in on the process? with the 3 reports (FS, OSHA and OIG)? What's next legally?"

my answer in September that I never sent in:

Following the Cramer Fire deaths, there were 3 reports which were mandated:

  • The USFS Report with the many controversial redactions imposed by the Office of Personnel Management (OPM);
  • The Occupational Safety and Health Administration (OSHA) Report after which the Forest Service paid a fine; and
  • The Inspector General's Report on whether the handling of the incident should result in criminal charges of wrongful death brought against an individual or individuals overseeing or related to the incident. This was required as a result of the 30 Mile deaths and before that, of Storm King. The Inspector General's Report has not yet come out (as of September).

Here's the legal process that usually occurs following release of an Inspector General's Report. The Inspector General oversees the Office of the Inspector General (OIG):

The OIG report makes recommendations regarding criminal liability to the Department of Justice (DOJ) which is then obligated to act upon them. The OIG report may recommend no further action or it may recommend that charges of criminal negligence be brought against one or more people.

If the OIG report recommends criminal charges be brought against someone, DOJ first asks the state if they want to take the next step in the criminal proceedings.

If the state says yes, a Grand Jury is convened to see if there's enough evidence to take the case to trial and the process proceeds at the state level.

If the state says no, the DOJ must take the next legal step and the process proceeds at the federal level. The DOJ issues an arrest warrant and a notice to appear before the Federal Magistrate. Federal marshals may come and lead the person away in handcuffs. The Federal Magistrate then follows a legal evaluation similar to that of the Grand Jury, to see if there's enough evidence to bind the person over for federal trial.

If either the Grand Jury or the Federal Magistrate decides there's enough evidence, the case goes to trial in state or federal court, respectively.

If the person is not represented by the Agency lawyers and cannot afford a personal lawyer, starting when charges are first brought, a public defender is appointed by the state or federal court.

Doesn't the Forest Service have lawyers to defend its employees against
criminal (or civil charges)?

They do, but sometimes employees do not get that defense. The FS lawyers are from the USDA Office of General Counsel. To determine if they will represent an employee, it must first be decided if the liability should be borne at the personal (individual employee) level or at the governmental (employer) level. Agency legal representation is available only if the employee is considered to be working "within the scope of their employment" when the incident occurred. As I understand it, working "within the scope of their employment" means that when the incident occurred, the person was doing what they were supposed to be doing to fulfill their job.

Are the families of the fallen involved creating this court case and process?
No, absolutely not. This process occurs completely independently of the families' wishes. The DOJ and the state are working on behalf of the fallen who cannot work on their own behalf. In fact the families of the fallen may greatly oppose criminal charges being brought and this part of the legal process would proceed anyway. However, a family can decide to file a civil suit against individuals (or the Forest Service if the employee was acting "within the scope of their employment" and the USDA defends them) for up to 3 years following the death.

What is the difference between a criminal and a civil case?
There are many differences. In a criminal case, a jury must decide unanimously that a person is guilty. The guilty verdict results in a sentencing process and may result in jail time. In a civil case there needs be only a "preponderance of guilt" for a guilty verdict, ie, it takes only seven or more jurors, not all 12. Civil suits that result in a guilty verdict often require a cash settlement to the family and there is no jail time. In civil cases in which the FS lawyers determine that the FS employee was acting "within the scope of their employment", the FS legal team takes on representation of the individual who is no longer at personal financial risk for a guilty verdict.

As you can see from the arrangement that is reported to have been reached, the process is not cut and dried. What Hackett's "leaving the USFS" means legally, I don't know.

Followup: As I understand it, Alan Hackett's pretrial diversion agreement with DOJ is the equivalent of a plea bargain.

Added later:
Link to more info on Cramer Fire Legal Process 3/8/05 and Professional Liability Insurance

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