With sentencing dates approaching, a federal judge has scheduled a hearing for next week to discuss the plea agreements made by Freedom Industries and six former Freedom officials related to the January 2014 chemical spill that contaminated the Kanawha Valley's drinking water supply.
U.S. District Judge Thomas Johnston set one hearing for 9:30 a.m. on Jan. 27 to discuss all seven cases. The judge said in a brief order that he would "hold a hearing to discuss the factual and legal basis for all pled offenses."
Johnston has sentencing hearings in the Freedom cases scheduled to start on Feb. 1 and run through Feb. 17.
Former U.S. Attorney Booth Goodwin reached plea agreements with Freedom, the corporate entity, and with six former Freedom officials. All agreed to plead guilty to water pollution crimes related to the Jan. 9, 2014, incident at the company's Etowah Terminal on the Elk River, just upstream from West Virginia American Water's regional drinking water intake.
Former Freedom officials who pleaded guilty are Gary Southern, Dennis Farrell, Charles Herzing, William Tis, Robert Reynolds, and Michael Burdette.
Under federal court rules, before entering judgment on a guilty plea, a judge is supposed to determine the factual basis for a plea.
During one Freedom plea hearing last year, one of the defendants initially raised questions about whether he had really committed a crime.
When Johnston asked Tis during a plea hearing in March 2015 whether he was guilty, Tis responded, "I have signed my name to these documents. If you're asking me in a court of law under oath, no, I don't believe I have committed a crime, but I am pleading guilty."
Johnston then said, "All right, counsel, we need to talk about this. I don't take pleas when the defendant doesn't admit guilt."
Tis then replied, "I guess I misunderstood what you were asking me, your honor."
"The events of that date, and how they occurred, and the failure to have a permit, because I was an officer of that company, I do agree with everything that was written there," Tis said. "So, to that extent, I am pleading guilty to Count Number 2. As a layman, I feel differently, but based on the law, I am pleading guilty, and I understand that."
Johnston went on to say that "this has actually never happened before."
When a defendant "tells me they're not guilty of a crime" they go to trial, the judge said, "and you just told me that you don't believe you're guilty of a crime."
Tis responded, "I do believe I am guilty of this offense. There's no doubt that as we wrote this up and I read it, and re-read it, and put my name on it that, as an officer of this company, I am guilty of that."
"The part that perhaps isn't [and] should be a part of this hearing is that there were people that we had hired that were charged with doing these things and their failure results in my failure, because of the way the law is written, I am guilty of this crime," Tis told the judge.
During another of the Freedom plea hearings, Johnston told prosecutors and defense attorneys, "I suppose it probably is an understatement to say that I'm a stickler about factual basis." The judge noted that earlier that day he entered an order throwing out a third plea agreement in a coal company kickback case because of what he said was a lack of a factual basis for the plea.
In that Freedom hearing, involving Farrell, Johnston encouraged lawyers in the case to file additional legal briefs to explain the factual basis for the plea. Prosecutors filed five different briefs in response to the judge's concerns to address the basis for the pleas involving Freedom, Southern and Farrell, Tis and Herzing, Burdette and Reynolds.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.