Defense formally requests dismissal of oil spill case

SANTA BARBARA — Charging prejudicial prosecutorial misconduct, the defense for a pipeline company involved in an oil spill filed documents Tuesday formally seeking dismissal of the criminal negligence case a day after the judge denied their request for a mistrial or admonishment of the jury during a sidebar.

Buttressing their arguments with transcripts and more detailed explanations, defense attorneys filed the documents in Santa Barbara County Superior Court Tuesday on behalf of Plains All American Pipeline.

The state attorney general’s office and the Santa Barbara county district attorney’s office are jointly prosecuting the company for alleged negligence in maintaining the pipeline and reacting to the spill of some 140,000 gallons of oil onto Refugio State Beach and into the ocean in 2015. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

The motion focuses on Deputy Attorney General Brett Morris asking Plains CEO Greg Armstrong in front of the jury on Monday, “Have you worked out any agreements with EPA officials or USDOJ regarding the May, 2015 oil spill?”

After multiple objections to Morris’ line of questioning were sustained, but a request for admonishment was denied by Santa County Superior Court Judge James Herman, Plains counsel Gary Lincenberg of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC requested a sidebar.

According to the documents filed Tuesday, during the sidebar Morris said the purpose of his question was to ascertain whether Plains had conspired with federal agencies to obstruct the state prosecution, and that he did not know whether that had happened but had seen federal employees talking to defense counsel in the court hallways.

After the sidebar and out of the presence of the jury, Morris told the court federal agencies and the U.S. Department of Justice specifically stood in the prosecution’s way by inhibiting their ability to use federal employees as witnesses during the trial. Morris said he was aware of conversations between the defense counsel for Plains and the counsel at the Department of Justice and a subsection of the Department of Transportation about what witnesses should be used.

Plains responded to Morris’ statements in the motion, supported by a November letter to the prosecutor from the U.S. Department of Transportation noting federal regulations limit whether non-federal parties may call federal employees to testify.

According to the filing, the DOJ also explained in a series of emails that it was denying the prosecution’s request for federal employee testimony partly because the prosecution was misrepresenting aspects of the trial in the courtroom. According to the motion, the DOJ asked the prosecution for an explanation as to “why the prosecution team continued to inaccurately represent to the court, Plains, and ultimately the public that [Department of Transportation] employees are part of the criminal trial — it is not.”

The Department of Transportation also said the law required it to judiciously use the time of its employees to handle federal cases and said the U.S. government is working on its own possible civil and criminal cases against Plains and on possible collaboration with other civil lawsuits and possibly settlement.

The defense motion claims Morris’ statement baselessly insinuated Plains had an agreement with federal agencies to interfere with the state’s prosecution. The defense attorneys said the prosecution was trying to make the jury draw an inference from his questions for which he had no proof.

After hearing Morris’s explanation for his questions on Monday, the judge said, “At this point, Mr. Morris you have no information except some sort of suspicion that something’s going on.”

In their motion, the defense counsel called Morris’ questioning of Armstrong, “the most shocking example of bad faith in their 100 years of joint practice.” In addition to Bird Marella attorneys, the defense includes teams from Munger, Tolles & Olson LLP and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP.

Before the trial began, the defense counsel for Plains requested a change of venue, arguing a trial in the same county in which the spill occurred would be prejudicial and all residents would consider themselves victims. Arguments, motions and filings based on prejudice have followed ever since.

This latest motion argues that a mistrial should be granted because the prosecutor’s alleged misconduct caused incurable prejudice, infected the trial with unfairness, and the prosecutor’s conduct was deceptive and reprehensible. The motion concludes by asking the jury be admonished at the very least.