Judge warns of gag order in oil spill criminal trial

SANTA BARBARA -- Corrosion, the root cause of the rupture of a pipeline that spilled 142,000 gallons of crude onto the Pacific coast in 2015, was the subject of detailed questioning Thursday in the criminal trial against Plains All American Pipeline.

The deposition-style court session, focused on technical jargon and paperwork, began with Santa Barbara County Superior Court Judge James Herman warning everyone in the courtroom he was thinking about issuing a gag order.

The comment came after Gary Linceberg of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, one of the attorneys for the defense, raised concerns over comments District Attorney Joyce Dudley made in a Daily Journal news article published Wednesday.

Herman later reminded the jurors not to read any articles written about the case. The jury was selected from a pool of hundreds after the defense had argued unsuccessfully for a change of venue, saying news coverage of the event in the county would preclude seating an unbiased panel.

The state attorney general and the Santa Barbara County district attorney's office are jointly trying the case, following a 42-count grand jury indictment. People v. Plains All American Pipeline LP, 1495091 (S. Barbara Super. Ct., filed May 16, 2016).

The charges were reduced to 12 when the trial started in April. They include three felony violations of the Government Code, Water Code and Penal Code for allegedly causing the pollutant to spill onto the land into the water. Eight misdemeanors allege a failure to make a timely call to the National Response Center, and violations of the Fish and Game Code, in particular the alleged deaths of two California sea lions, three brown pelicans, a dolphin and a loon.

In a statement to investors after the indictment was issued, Plains said it had directly or indirectly spent over $150 million on the response effort and cleanup and was committed to mitigating the impact of the spill.

Thursday's trial session eventually hit a breaking point when Deputy Attorney General Brett Morris asked John Shelton, the oil company's corrosion control supervisor, to review a section of a more than 100-page document, page by page.

While Shelton sifted through the packet of documents, Herman told the jury that despite the tediousness of the process, it is not unusual during technical testimony for a witness to review documents. A moment later, after Morris asked Shelton to look at another section of the document, Herman said in a frustrated tone, "Really? Haven't we gone over all of this?"

The judge said he would allow Morris one more question.

At that point, Shelton -- who had been answering questions for at least three hours -- appearing agitated, said to Morris, "You're being really confusing when you ask me to go back and forth from document to document. You're telling me I said this and said that. You need to clarify to me what are you asking me."

Morris responded by asking the judge for one more question to clarify a point, which was allowed.

What was eventually revealed by Shelton's testimony is that studies taken periodically over 10 years showed an increase in corrosion of Line 901, the pipeline that ran under Highway 101 and eventually burst, with oil spewing over Refugio State Beach and into the ocean. In response to the increase in corrosion, Plains increased intervals of inspections of the pipeline, Shelton testified.

Another witness called by the prosecution was William Sarten, a pipeline repairman and supervisor at Pacific Petroleum California Inc., an independent contractor hired by Plains to do pipeline inspection. During questioning by Deputy District Attorney Kevin Weichbrod, Sarten said he identified five corrosion anomalies during a 2013 dig-inspection and repair of Line 901.

During cross-examination by defense attorney Naeun Rim of Bird Marella, Sarten said the condition of Line 901 in 2013 didn't seem particularly bad compared to other repairs he made in his 13-year career.

A moment of relief during the eight-hour day of testimony came when during a cross examination, Rim requested to approach the bench to borrow a laser pointer, to which the judge replied, "Yes, you may borrow the laser pointer but I better get it back." A roar of laughter broke out among the jurors and people sitting in the audience.

The indictment had originally included James Buchanan, the oil company's environmental and regulatory compliance officer.

For the Daily Journal article published Wednesday, District Attorney Dudley had said in an email, "The charges were dismissed in the interest of justice, based upon subsequently developed evidence relating to Mr. Buchanan's lack of personal responsibility for the alleged crimes."

Buchanan's attorney, Douglas Richards, told the Daily Journal on Thursday that he took umbrage with Dudley's comments. Richards said the charges were dismissed because of "lack of evidence and prosecutorial misconduct."

Richards' website says he "successfully argued for the dismissal of one count for lack of probable cause and another for prosecutorial misconduct following revelations that the prosecutors with the Attorney General's Office (headed at that time by Kamala Harris) withheld exculpatory information from the grand jury. With their case dismantled, prosecutors gave up and dismissed the final count on the eve of trial."