Judge denies mistrial motion in oil spill case

SANTA BARBARA — Judge James Herman denied a motion for mistrial Monday in the criminal negligence trial over a 2015 oil spill, having sustained the defense’s motions to strike the prosecutor’s questions but denied a request to admonish.

The prosecutor, in his defense, told the judge his questions were based on what he believed was behavior by federal agencies that inhibited the prosecution.

Defense counsel for Plains All American Pipeline argued that the trial should be ended due to alleged prosecutorial misconduct by Deputy Attorney General Brett Morris for repeatedly asking the company’s CEO questions in “bad faith” after the judge had ordered the queries stricken.

During a 4-minute, heated sidebar outside the presence of the jury, defense lead Gary Lincenberg argued that it was bad faith for Morris to ask Plains CEO Greg Armstrong during direct examination whether or not he had hired lobbyists leading up to the oil spill in 2015.

During the questioning Lincenberg, of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC, animatedly objected to many of Morris’ questions when they turned to the theme of lobbyists and deal making.

During the sidebar, Lincenberg argued that not only should there be a mistrial but an evidentiary hearing to question Morris.

The state attorney general’s and Santa Barbara County district attorney’s offices are jointly prosecuting the case in which the jury must decide whether Plains All American Pipeline’s procedures before and after the 142,000 gallon oil spill at Refugio State Beach were criminally negligent. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

After testy sidebar exchanges Herman reminded the attorneys to keep the discourse civil.

The judge then responded to Lincenberg’s request for a mistrial by saying, “I’m sorry but I disagree.”

The questioning that led to the argument began with Morris asking Armstrong, “Was there any lobbyist employed by Plains at California prior to May 2013?”

“Objection, relevance,” Lincenberg intervened.

After a brief pause, Herman sustained the objection.

Morris continued, “Do you know if Plains made any arrangements with the PHMSA [Pipeline and Hazardous Materials Safety Administration] regarding this particular trial here in California?”

Lincenberg immediately responded, “Objection, relevance, vague, 352, ask for admonition.”

The judge replied, “Sustained. Overruled as to the admonition.”

With tensions rising, Morris continued the line of questioning without hesitation. “Have you at Plains worked out any agreements with EPA [Environmental Protection Agency] officials or US DOJ [United States Department of Justice] regarding the main plaintiff …?” Morris asked.

“Same objection,” Lincenberg said. “I ask for a sidebar if there isn’t going to be an admonition. …”

Hundreds of prospective jurors were reviewed to impanel the jury for the trial that began in May. The defense, which also includes a team from Munger Tolles & Olson LLP led by Luis Li, requested a change of venue because it argued a Santa Barbara County jury could not be impartial after 140,000 gallons of oil flowed onto the beach and into the ocean. That change of venue request was denied.

Outside of the presence of the jury, the plea for a mistrial continued when Lincenberg told the court that Morris knew Armstrong’s answer to his questions would be “no” or “of course not.”

“The questions were thrown out there in front of the jury, in front of the press to intentionally inflame the jury to speculate,” Lincenberg said to Herman.

Herman said while he agreed the objections were valid to the point of sustaining them, he did not feel Morris’ questions warranted a mistrial.

Herman then gave Morris the opportunity to respond to the defense’s accusation.

“Your honor, for the record, I think it would be appropriate, if somebody accuses me of bad faith, I can at least deny it or address it on the record,” Morris said.

Morris then told the court if an evidentiary hearing were to be held, the defense counsel for Plains, the DOJ and the hazardous materials administration should be called to explore alleged conversations about witnesses.

Morris told the court federal agencies and the DOJ specifically stood in the prosecution’s way by inhibiting their ability to use federal government witnesses during the trial. Morris said he knew of conversations between the defense counsel for Plains and the counsel at the DOJ and hazardous materials administration about what witnesses should be used.

Morris said he had witnessed representatives from the DOJ and Plains counsel conferring in the halls outside the courtroom. Morris also said that after the spill in 2015, Plains made numerous lobbying efforts with the California governor’s office, and other government agencies. Morris said the alleged conversations and the alleged lobbying efforts were the inspiration for his questioning of Armstrong about his dealings with the government agencies.

After Morris was done, Herman replied, “At this point, Mr. Morris, you have no information except some sort of suspicion that something’s going on relative to the witnesses that were to be called. …”

Herman told the court also said he was bringing the jury in for an additional day on Tuesday.