by Russell Mokhiber
and Robert Weissman
-Guest Columnists-

'There was simply no evidence that Sara Lee Bil Mar knew that the food product that they were producing and shipping out was adulterated with Listeria monocytogenes.'
-U.S. Attorney Phillip Green.

Let us now have a moment of silence for the victims of the Ball Park Franks fiasco.

Thank you.

This is the situation: Bil Mar Foods is a unit of the Chicago-based giant Sara Lee Corporation, the maker of pound cakes, cheesecakes, pies, muffins, L�Eggs, Hanes, Playtex and Wonderbra products�your typical food and underwear conglomerate.

Bil Mar makes hot dogs�Ball Park Franks hot dogs. You�ve seen them when you go to a baseball game at Tiger Stadium in Detroit and elsewhere.

In June, Sara Lee pled guilty to two misdemeanor counts in connection with a listeriosis outbreak that led to the deaths of at least 21 consumers who ate Ball Park Franks hot dogs and other meat products. One hundred people were seriously injured. The company paid a $200,000 fine.

According to Kenneth Moll, a Chicago attorney representing the families of the victims, this is what happened:

Bil Mar has a hot dog facility in Zeeland, Michigan. The company shut down the facility over the July 4th weekend of 1998 to replace a refrigeration unit that was above the hot processing facility. The hot dogs are heated at one end and sent down a conveyer belt to the other.

Moll�s theory is that the removal of the air conditioning unit and its replacement dislodged some dangerous bacteria in the ceiling. When the plant reopened, steam from the passing hot dogs went up to the ceiling, condensed and dripped back down with the dangerous bacteria onto the hot dogs.

In November 1998, Paul Mead from the Centers for Disease Control (CDC) in Atlanta started receiving calls from state health departments around the country that had isolated strains of a deadly bacteria, Listeria monocytogenes.

Mead looked at the bacteria and found that they were the same strain. He sent out questionnaires and discovered there was an open package of hot dogs in the home of one of the people who died. The CDC tested the hot dogs and isolated the same bacterial strain�a DNA fingerprint of the type of bacteria.

According to Moll, Mead went to the Bil Mar plant in Zeeland, Michigan and tested unopened packages of hot dogs and was able to isolate the same DNA fingerprint bacteria. In December 1998, Sara Lee ordered a recall of millions of pounds of hot dogs and deli meats.

According to a series of reports in the Detroit Free Press, plant workers were regularly testing work surfaces for the presence of cold-loving bacteria�a class of bacteria that includes the deadly Listeria monocytogenes as well as some harmless bacteria.

According to the Free Press, beginning in July 1998, after the replacement of the old refrigeration unit, workers recorded a sharp increase in the presence of cold-loving bacteria. The number of positive samples remained high until the company stopped performing tests in November 1998�a month before the Sara Lee recall.

"Sara Lee was doing testing of the environment in the plant for cold-loving bacteria," said Caroline Smith DeWaal of the Center for Science in the Public Interest. "Then their tests started coming up positive, so they stopped testing. They knew they had a problem with bacteria in the plant. But instead of solving it, they chose to ignore it."

This is crucial, because if the company knew that they had a Listeria monocytogenes problem and ignored it, they could be hit with a felony conviction. And felony convictions have all kinds of collateral consequences, including possible loss of federal contracts�Sara Lee had a big hot dog contract with the Department of Defense.

In an interview, U.S. Attorney Phillip Green said there was insufficient evidence to bring a felony charge.

"There was simply no evidence that Sara Lee Bil Mar knew that the food product that they were producing and shipping out was adulterated with Listeria monocytogenes," Green told us.

When asked about the allegations raised by the Free Press that the company was testing for cold-loving bacteria, Green told us, "the testing that you are referring to is known as Low Temperature Pathogens testing�that is a very general test that does not necessarily indicate the presence of Listeria monocytogenes."

"The USDA regulations don�t require a plant to conduct testing on finished products for the presence of deadly pathogens such as Listeria monocytogenes," Green said. "And Bil Mar was following accepted industry practices in conducting general testing for the low temperature pathogens."

But Green refused to answer specific questions about evidence concerning a possible felony violation.

Moll�the attorney representing the victims�told us that the evidence "does necessarily indicate the presence of Listeria monocytogenes." The CDC�s Mead found studies showing that, had Sara Lee done further testing for the deadly strain of Listeria, almost half of the cold-loving bacteria could have tested positive for Listeria monocytogenes.

But U.S. Attorney Green never read Mead�s report. He never called on Mead, perhaps the crucial expert in this case, to testify before the grand jury.

In fact, it is apparent from our investigation into this matter that federal prosecutors were overpowered by Sara Lee�s outside lawyers in this case�the Chicago firm of Jenner & Block, led by former Chicago U.S. Attorney Anton Valukas.

Valukas refused, on advice of his client, to speak with us.

But the extraordinary degree of the collaboration between Sara Lee and the federal prosecutors in this case can be seen on Sara Lee�s web site where it has posted a "joint press release."

No, that�s not a typo. The U.S. Attorney and Sara Lee issued a joint press release announcing the plea agreement in which no mention is made of Ball Park Franks hot dogs.

The issuance of a joint press release is an extraordinary event. U.S. Attorney Green can�t name a case where the prosecutor and convict issued a joint press release announcing their plea agreement. Neither can the current chief of the Criminal Division at the Department of Justice, Michael Chertoff. He calls it "unusual."

In a number of ways, the Sara Lee prosecution brings home the double standards in our criminal justice system.

A company pleads guilty to a crime that leads to the death of 21 human beings. The company pleads to two misdemeanors. The company is fined $200,000. Think about that.

We were so outraged by this that we went over to the White House and asked President Bush�s press secretary about it.

We laid out the facts of the Sara Lee case and then asked our question. This is how it went:

Question: Ari, has the President expressed a view on the death penalty for corporate criminals�that is, revoking the charter of a corporation that has been convicted of a crime that has resulted in death?

Fleischer: The President does not weigh in on those matters of justice. They should not be dictated by decisions made at the White House.

Question: Now, Ari, wait a second. Ari, Ari, wait a second. He�s in favor of the death penalty for individuals generally. Is he in favor of the death penalty for corporations convicted of crimes that result in death?

Fleischer: These are questions that are handled by officials of the Justice Department�not by people at the White House.

Someday, Ari, the White House too will have to answer�why death to individual criminals, but not to your corporate criminal paymasters?