Judge bans press 3 times from oil spill trial

SANTA BARBARA -- A superior court judge has three times barred the press and public from hearings in the criminal negligence trial of Plains All American Pipeline.

Judge James Herman ordered all non-lawyers out of the courtroom twice on Monday, and also last Friday, when he told a journalist not to report on anything he had heard up until that point. The hearings the judge has banned the press from have lasted about 15 minutes each.

After ordering the press out of the courtroom again first thing Monday morning, the judge held a closed hearing, and immediately afterward admonished the lead prosecutor, Deputy Attorney General Brett Morris, for inappropriately questioning a witness in an encounter last week that led to the defense requesting a mistrial. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

The defense had vociferously requested admonishments in front of the jury when the prosecutor repeatedly asked Plains CEO Gregory Armstrong about an alleged arrangement between Plains attorneys and the U.S. Department of Justice as well as the Pipeline and Hazardous Material Safety Administration and Environmental Protection Agency, to prevent witnesses from testifying.

On Monday, the judge issued the admonishment before the jury came in. "I will admonish the people at this point," Herman said. "This is the second issue where there's been some difficulty in terms of this case, relative to transgressions by the prosecution."

Herman reminded the court that a deputy attorney general monitoring the trial for the civil division had spoken to a juror outside the courtroom, leading to the barring of that attorney for the reminder of the trial and the dismissal of the juror.

Experts noted Monday that because there is a presumptive right of access to criminal proceedings, it is rare to limit public access.

"The burden for closing any part of a criminal proceeding is very high, so it is very, very unusual," said Jean-Paul Jassy of Jassy Vick Carolan LLP, who specializes in First Amendment and media rights cases.

A judge must make a finding of fact in an order justifying the closure under the California Constitution and the First Amendment, according to David Snyder, executive director of the First Amendment Coalition.

It is usually one of the parties that makes a motion to request closure, Snyder added. But in the Santa Barbara County case, there was no indication that either side requested the hearings be closed.

Herman gave no explanation as he ordered anyone not directly involved in the case to vacate the courtroom on two occasions on Monday. On the first occasion on Monday, the bailiff asked the judge if the session was closed, to which he replied, "Yes, this is a closed hearing."

The only clue as to what may have been discussed during the closed hearings on Monday came last Friday when defense counsel asked the judge to reserve time Monday morning to discuss a juror's note that was circulated among attorneys from both sides.

UCLA School of Law professor Eugene Volokh noted that the judge's role is to consider the public's rights, as the defense and prosecution often would like to keep some proceedings under wraps.

"There are three parties that have an interest here: the prosecution, the defense and the public," Volokh said. "The judge ought to consider the interests of the public. The public has an independent right of access."

"It's not enough for the parties to agree to the sealing," Volokh said. "Even if they want it sealed, it doesn't mean it should be sealed."

"It's a significant thing," Snyder said, "and it should be treated as such by judges and the parties involved, and it shouldn't be done on a whim. Unfortunately, it happens more often than it should."

The order should be written and put on the public record specifically to allow a challenge, said Jen Nelson, a litigator with the Reporters Committee for Freedom of the Press. That way, a higher court reviewing the order will have something to look at, she explained.

While the decision could be reversed on appeal, "it loses its immediacy because the damage is already done," Snyder said.

Courts are even more limited in their ability to prevent the publication of public information, Snyder said, commenting on the judge's instruction to a reporter not to publish what he had already heard.

Restricting publication of information learned in a public hearing amounts to an unconstitutional prior restraint, Snyder said. If the information is disclosed in a public hearing, "the court's ability to bring that back in, to put the toothpaste back in the tube, is basically nil," he said.

Nelson agreed. "That's not at all permissible." The Supreme Court has held on a multiple occasions that courts cannot ask a reporter not to publish information that was said in open court, she said.

The issue of Morris' allegedly improper questions to the CEO of the pipeline company accused of negligence before and after the 2015 oil spill on Refugio State Beach came up last week when the prosecutor asked: "Have you at Plains worked out any agreements with EPA [Environmental Protection Agency] officials or U.S. DOJ regarding the main plaintiff...?"

Defense counsel for Plains asked for a mistrial on the grounds that the trial was prejudiced by the prosecution's questions. After Herman denied the request, the defense filed a formal motion containing a request for a mistrial, a sanction of the prosecution, or "at the very least" as it was stated in the motion, an admonishment.

"Speaking to the prejudice towards Plains," Herman said Monday after the first closed hearing and before the jury came in. "I sat listening to the questions and I thought they were irrelevant but I saw no implication ... in terms of any suggestion of impropriety that Plains tries to read into the exchange, is just simply not apparent to the court and I think would be even less apparent to the jury."

Lead defense attorney Gary Lincenberg of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC argued the prosecution's questions were made in bad faith. According to Lincenberg, Morris said during a sidebar that the only substantial evidence for the alleged collusion was an alleged meeting between the U.S. DOJ and Plains defense attorneys that Morris said he witnessed in the halls of the courthouse.

Defense counsel also includes a Munger, Tolles & Olson LLP team led by Luis Li and a team from Fell, Abkin, Mongomery, Granet & Raney LLP led by Craig Granet.

"He's throwing out this idea that maybe there's a conspiracy: 'I've seen defense lawyers speaking with assistant US attorney ...,'" Lincenberg said. "Now we see that it is bad faith. He has no reason to believe that there's some conspiracy that Plains is having with a Justice Department..."

While Herman denied the motion for a mistrial and expressed heavy doubts that the jury was prejudiced by the prosecution's questions, he did seem to agree with defense counsel about the prosecution's comments during the sidebar.

"I am concerned about the undercurrent provided in sidebar by the People because it is totally inappropriate to suggest that somehow some kind of collusion between Plains and ... the government agencies in order to exclude government employees from testifying about whatever arrangements the People speculated about ..." Herman said. "I'm not going to sanction the People but I will admonish the People that this is not appropriate in these hearings to explore these questions."

Herman then told the prosecution that he would not admonish the jury and that he had already instructed the jury to base their conclusions on witness answers and not on the attorneys' questions. After admonishing the prosecution, Herman gave Morris a chance to comment.

"Your honor, about the sidebar -- collusion or conspiracy -- I want to correct the record," Morris said. "I was not expressing that there was any collusion or that there's a suggestion of collusion and I certainly didn't say there was some sort of conspiracy because the lawyers were talking out at the hallway ..."

Morris replied to the accusations made by defense counsel by reminding them that the court had already found the questions were neutrally phrased.