Judge bars attorney from courtroom for speaking to juror

SANTA BARBARA -- A judge barred a deputy attorney general from appearing in court when the jury is present after the lawyer spoke with a juror for several minutes during the trial of an oil company criminally charged with responsibility for a 142,000 gallon oil spill onto Refugio State Beach in 2015.

Santa Barbara County Superior Court Judge James Herman issued the bar against Ross Hirsch, who works in the civil division of the attorney general's office, during an afternoon recess Thursday.

The judge said Hirsch's action was totally inappropriate and mind boggling.

After the defense observed him and complained, Hirsch -- who told the judge he was monitoring the criminal trial and not participating in it -- said he spoke to the juror about his injured foot, the palm trees around the courthouse and mentioned he was an environmental attorney when the juror approached him outside the courthouse during lunch.

Hirsch said he carried on the conversation for at least five minutes because he didn't want to be rude.

The conversation was brought to the court's attention by lead defense counsel Gary Lincenberg of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC, who represents Plains All American Oil Company in the trial that began in April. People v. Plains All American Pipeline LP, 1495091 (S. Barbara Super. Ct., filed May 16, 2016).

Lincenberg said three members of the defense team, which also includes Munger, Tolles & Olson LLP, had observed Hirsch's conversation with the juror and noted another juror was nearby.

The prosecution, which includes the attorney general's office and the Santa Barbara County district attorney's office, has been accused by a defense attorney for one of the oil company supervisors, who has said all charges against his client were dismissed partly because of prosecutorial misconduct. That has not been made public.

The lead prosecutor, Deputy Attorney General Brett Morris, told the judge on Thursday that Hirsch was not associated with the criminal case but was monitoring it for any upcoming civil action.

After Hirsch declared he was not working on the criminal case, the judge noted he had in fact appeared in the criminal case before another judge about sealing the record.

Hirsch then acknowledged he had made an appearance regarding a sealed grand jury record.

When the judge allowed Lincenberg to question Hirsch, the defense attorney pressed him on whether he knew he was not supposed to have contact with jurors. Hirsch said he didn't think there was anything wrong with a casual conversation.

Lincenberg pressed again, and Hirsch maintained that the rule against conversation with jurors applied to the substance of the case and repeatedly said he did nothing wrong.

After consulting with the prosecutors and defense attorneys, the judge decided for the time being not to question the jurors -- as they may not know that Hirsch is in the attorney general's office.

Lincenberg asked that Hirsch he barred from the trial, and the judge said he would be barred from being in the courtroom in the sight of jurors.

When Hirsch asked if it was just for the day, the judge clarified that it was until further discussions occur and added that he was very troubled.

When the jury returned, he reminded them to always wear their badges so that anyone involved knows they are a juror.

Commenting on the situation, Robert Fellmeth, executive director at the Center for Public Interest Law at University of San Diego School of Law, said there are different degrees of severity connected with this kind of incident.

"In terms of sanctions, if he's talking about the case, his license is in some jeopardy,"Fellmeth said. "If he's not talking about the case, if I'm on the State Bar, I don't know if I do anything more than issue a reproval ... something saying, 'You cannot do that.'"

Since Hirsch said he did not discuss the case with the juror, Fellmeth said he didn't believe Hirsch's license will or should be revoked but that three possible repercussions may result from his actions.

"One, he could be sanctioned by the court with a fine," Fellmeth said. "Two, they could file something in his record at the AG's office. Three, he might receive a warning from the bar."

As far as the case is concerned, Fellmeth said a dismissal over this incident is unlikely but the juror in question might be recused and replaced with an alternate.

A phone message left with Hirsch's office seeking his comment was not returned.