Judge dismisses juror for chatting with deputy attorney general

SANTA BARBARA -- A juror was dismissed Tuesday from a pipeline company's criminal negligence trial because she chatted with a deputy attorney general during a lunch break, and the court heard she spoke to another juror about the issue after she was questioned in camera.

The lawyer, who works for the civil division of the state prosecutor's office and had been monitoring the trial in anticipation of coming civil cases, was previously barred by the judge from appearing in court in the sight of jurors because he continued to talk to the juror for at least 5 minutes, saying he didn't want to be rude to her.

Defense attorneys argued Tuesday that the deputy attorney general had not given the court a full account of the conversation when the first inquiry hearing was held last week and had not come forward to report the conversation in which the juror said she told him of a bad experience in the past with an oil company.

Defense attorneys reported the meeting to the judge after they witnessed it last Thursday.

Santa Barbara County Superior Court Judge James Herman held a closed hearing on Monday to question the juror away from the panel and made his ruling Tuesday after hearing from attorneys outside the jury's presence.

The decision came after Luis Li of Munger Tolles & Olson LLP, one of the defense attorneys for Plains All American Pipeline, argued that because Deputy Attorney General Ross Hirsch had violated the rules of professional conduct in at least three major ways when he had contact with the juror, the juror may no longer be impartial and should be dismissed.

"First, he failed to identify himself to the juror. Had he done so, it would have prevented the entire inquiry," said Li. "Second, he failed to report to this court immediately as he's required under 5-320 (G) of his contact. Third issue, this is the one that causes us greater concern, he did not fully disclose the nature of the conversation with the juror."

Li continued to explain that the juror had testified in the closed hearing that she told Hirsch she had a bad experience with a big oil company. She said she had been an owner of a gas station and had a dispute with the oil company as to who should collect the revenue from a phone booth on the premises.

Hirsch failed to mention this part of the conversation to the court when he was questioned about the incident last Thursday. At that time, Hirsch said the juror chatted with him about his injured foot and the palm trees around the courthouse and that he told her he was an environmental lawyer.

Li argued that because the court did not know how this particular conversation was brought up, Hirsch may have stoked a bias with the juror.

"Plains is a large oil company. We do not know if there was a relationship ... and if [her account] was prompted in any way by the deputy attorney general," Li said. "We don't know if he said, 'I'm an environmental lawyer and in my experience I think they're terrible.'"

Hirsch had a connection to the criminal portion of the case when he made an appearance in front of another judge to discuss a sealed record. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

According to the The State Bar of California, Rule 5-320 states: "During trial a member connected with the case shall not communicate directly or indirectly with any juror."

In addition to his argument for dismissal of the juror, Li told the court a case clerk from Munger Tolles & Olson had seen the juror leave the court in a disgruntled manner right after she gave her closed testimony the previous day. The clerk, Nelson Marinero, told Li he had seen the juror talk to another juror about the contents of her testimony in the hallway.

The clerk was then called to come before the court and describe what he had seen. He was not put under oath.

If his testimony is accurate, this would be the second juror to have been witnessed gaining knowledge of this controversial conversation between juror and deputy attorney general. Last week when the conversation was taking place, an additional juror was witnessed being within earshot.

After Li and other attorneys made their argument for the dismissal of the juror who actually had the conversation, Judge Herman asked if they wanted to pursue any further action regarding any other juror.

"We are prepared to not go further with any further inquiry of the other two jurors," said defense attorney Gary Lincenberg from Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC.

Hundreds of prospective jurors were reviewed to impanel the jury for the trial that began in April. The defense requested a change of venue because it argued a Santa Barbara County jury could not be impartial after 140,000 gallons of oil were spilled on the Refugio State Beach and into the ocean. That change of venue request was denied.