Jury dwindles as oil pipeline trial enters third month

SANTA BARBARA -- Down four jurors, the criminal negligence trial against an oil pipeline company over a massive coastline spill lost yet another juror and resumes Monday with two remaining alternates, the prosecution's case far from over and some attorneys doubting the September deadline can be met.

The jury is to determine whether Plains All American Pipeline's procedures before and after the 142,000 gallon oil spill at Refugio State Beach in 2015 were criminally negligent.

On Friday, jurors submitted written questions, which were put to the main witness of the day by both the defense and the prosecution.

The trial began in May after a jury selection process including more than 800 potential jurors. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

Despite tense moments, arguing over submissions, an exasperated court reporter, and the judge asking the attorneys how much longer they would take with the witness, the courtroom burst into laughter Friday over a faulty projector and the judge's chuckling dismissal of the witness.

With one juror dismissed last week for improper contact with a deputy attorney general, who was subsequently barred from the court, and another juror dismissed for health reasons, Santa Barbara County Superior Court Judge James Herman asked two alternates to take the empty chairs in the jury box.

"Ladies and gentlemen, for reasons outside of your purview," Herman said, "juror No. 10 has been dismissed."

In January 2017, the Plains defense team sought a change of venue, arguing the Texas-based company could not get a fair trial in Santa Barbara County because of extensive and prejudicial media coverage.

They argued Plains was being perceived by the public as an outsider and member of "big oil" and all Santa Barbara County residents saw themselves as victims of the 2015 oil spill. There are expected to be thousands of plaintiffs in civil cases that may follow the criminal trial.

The motion was eventually denied by Judge Jean Dandona, who was hearing the case at the time. She said media coverage of the spill was extensive and mostly factual.

Considering the likelihood of the trial going past its estimated September end date, due to long hours of technical questions and unforeseen attorney misconduct, the dwindling number of alternate jurors may become an issue in the future, and some attorneys have said they are concerned about running out.

After the jury's musical chairs concluded Thursday, defense attorney Luis Li from Munger, Tolles and Olson LLP began questioning Katherine Buckingham, a preparedness analyst planning specialist from the Federal Emergency Management Agency, about the possible root causes of the pipe rupture that led to the spill.

Buckingham, who was retained by Plains to lead the incident investigation after the spill, stated in her report that there were four root causes of the leak.

First, all three layers of protective coating around the pipeline failed, letting water reach the pipe and causing corrosion to occur. Second, the Cathodic protection system, which is used to control the corrosion of a metal surface with an electrical charge, failed.

Third, a contracted vendor by the name of the Rosen Group, that had been hired to test the metal wall loss of the pipeline, significantly misrepresented the wall loss in two previous tests of the pipeline prior to the spill.

While the result from the last test done by the Rosen Group showed the pipeline had only a 47 percent metal wall loss, it was later revealed at the time of the spill the pipeline had actually had an 89 percent wall loss, meaning only 11 percent of the metal pipe wall remained at the time of the rupture.

Fourth, the mitigative actions taken by Plains did not adequately address the corrosion.

The third root cause seemed to be integral to the defense team's line of questioning.

With the aid of graphs and diagrams, Li repeatedly highlighted the finding that the Rosen Group had allegedly significantly miscalculated the metal wall loss of the pipeline.

"If they had been given correct information," Li said of his client, "that hole would have been dug up, and it would have been repaired."

Later, Deputy Attorney General Brett Morris, who is leading the joint state-county prosecution team, directly asked Buckingham about the Rosen's Group culpability.

"Did you make any findings whether or not this was Rosen's fault for this rupture?" Morris said.

"No, we did not," Buckingham replied, adding Rosen Group's actions were not a focus of her report.

District Attorney Joyce Dudley, who originally obtained the indictment of Plains on criminal charges, briefly sat in the back row to observe the proceedings as Buckingham testified.

As the highly technical testimony continued, both Morris from the prosecution and Li for the defense asked Buckingham written questions, given to them directly by jurors.

"You testified that Plains did not strictly adhere to the integrity management plan," Morris said while reading from a juror note. "Isn't it just as fair to say that Plains did for all practical purposes fully adhere to its plan?"

With a confused look on her face and after some hesitation, Buckingham replied, "So I guess you're talking about 'fully adhering' and 'strictly following.'"

One of the only moments of levity in the middle of the slog of technical questions came when Li blamed the projector for the poor quality of an image on the screen.

Herman grunted as if he took offense to the comment.

"No offense, your honor, I'm sure it's a very good projector," said Li after the crowd broke into a roar of laughter.

After two consecutive days of Buckingham's testimony, Herman eventually stopped Li in the middle of questioning to ask how much longer he was going to take.

After hearing from both sides on their estimated questioning time, Herman told the court, "I'm going to make an executive decision to release the next witness we have lined up."

Along with the sluggish questioning, multiple debates over document submission ensued. At one point, the court reporter stopped everything, saying she couldn't hear who was speaking or what was being said.

"You are all over each other!" the reporter said loudly.

After yet another discussion about documents and some back and fourth between attorneys, Buckingham was finally excused when Li notified the court he had no further questions.

"Okay, I think you're excused ... subject to recall... hopefully not likely," Herman said to a chuckling jury.