|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
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
- The USFS Report with the many controversial redactions
imposed by the
Office of Personnel Management (OPM);
- The Occupational Safety and Health Administration (OSHA)
which the Forest Service paid a fine; and
- The Inspector General's Report on whether the handling of
should result in criminal charges of wrongful death brought
individual or individuals overseeing or related to the incident.
was required as a result of the 30 Mile deaths and before that, of
King. The Inspector General's Report has not yet come out (as of
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
Department of Justice (DOJ) which is then obligated to act upon them.
The OIG report may recommend no further action or it may recommend
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
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
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
If either the Grand Jury or the Federal Magistrate decides there's
evidence, the case goes to trial in state or federal court,
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
criminal (or civil charges)?
They do, but sometimes employees do not get that defense. The FS
are from the USDA Office of General Counsel. To determine if they will
represent an employee, it must first be decided if the liability
be borne at the personal (individual employee) level or at the
governmental (employer) level. Agency legal representation is
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
No, absolutely not. This process occurs completely independently of
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
fallen may greatly oppose criminal charges being brought and this part
of the legal process would proceed anyway. However, a family can
to file a civil suit against individuals (or the Forest Service if the
employee was acting "within the scope of their employment" and the
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
a guilty verdict often require a cash settlement to the family and
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
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
Followup: As I understand it, Alan Hackett's pretrial
diversion agreement with DOJ is the equivalent of a plea bargain.
Link to more info on
Cramer Fire Legal Process 3/8/05 and Professional Liability