Judge unseals transcripts from criminal trial hearings

SANTA BARBARA -- Judge James Herman on Thursday unsealed records of three criminal trial hearings he had closed to the press and public last Friday and Monday and also lifted his order that a journalist could not report proceedings he had already witnessed in which the judge expressed concerns about a mistrial.

Before closing that hearing on Friday and sending the lone reporter out of the courtroom, Herman had commented that because of dwindling juror numbers, a mistrial was becoming a big concern. He also expressed displeasure that the trial was taking longer than he had expected.

Down four jurors, there are two alternates left in a trial that began in May and is expected to continue until September over charges of criminal negligence against Plains All American Pipeline because of its actions before and after an oil spill in 2015.

However, direct and cross examination has been detailed and time-consuming, interrupted by lengthy sidebars and separate hearings over disputes between the prosecuting and defending attorneys.

Herman announced Thursday he had closed the hearings to prevent private juror information from being revealed to the public. He gave no reason for closing the hearings at the time.

At the end of the court day Thursday, the Santa Barbara County Superior Court judge provided transcripts of the closed hearings, which normally would have taken much longer to obtain and would have had to be purchased.

"We had two hearings with the jury present to make inquiries regarding issues that may have led to disclosure of private information from jurors," Herman said Thursday morning before bringing the jury in.

Herman said that after conducting the closed hearing on Monday, he found that the developed information about the juror "was personal in nature but nothing that should remain kept private."

Citing California Rules of Court Section 1.150 e6, which gives judges authority to limit recording and photographing of court proceedings but does not otherwise limit reporting, Herman said, "The court has made the decision to unseal the records and make them open to the public and to the press."

Herman said from the bench he held the closed hearing last Friday in the courtroom simply because his chambers could not physically accommodate all the lawyers involved.

"Releasing the transcripts is better than nothing but not a substitute for open proceedings," according to Jean Paul Jassy, an attorney with Jassy Vick Carolan LLP who focuses on First Amendment and media rights issues.

Public exclusion from criminal proceedings is rare as there is a presumptive right of access, Jassy and other First Amendment experts commented Thursday. In any case, the court still has an obligation to provide public notice and finding of fact justifying the closure on the record, Jassy said.

David Snyder, executive director of the First Amendment Coalition agreed, noting, "The public should have been able to see the hearing in real time. The fact that they weren't is problematic."

While in theory discussing sensitive information about a juror could be grounds for a closure, the court would still have to articulate that a public hearing would result in substantial probability of harm -- which is a difficult burden, Jassy said.

Referring to the judge's order that the reporter not publish information he had already seen and heard, Snyder said unsealing the transcripts doesn't solve the unconstitutional prior constraint that restricting publication of information learned in open court amounts to.

"It goes some direction, in that it provides public access, but it doesn't do away with the fact that a court issued an order preventing publication," Snyder said. "That's a harm in and of itself."

Jassy noted that the U.S. Supreme Court has rarely upheld prior restraint of speech, even in high-profile cases involving national security.

Last week, before the closed hearings, a juror's note was given to the prosecution and defense counsel. The note was passed around the courtroom as 13 attorneys and staff from Munger, Tolles & Olson LLP; Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC; and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP huddled around to read it.

The defense had openly asked the judge to reserve time Monday morning to discuss the note, but that was never done in open court.

Also on Monday, shortly after closing the courtroom, the judge reopened and announced without the jury present that he was admonishing the lead prosecutor, Deputy Attorney General Brett Morris, because of questions the defense alleged were in bad faith and may have prejudiced the jury.

After the jury came in Thursday, biologist Michelle Berman testified about alleged damage to wildlife when more than 140,000 gallons of oil spilled onto Refugio State Beach and into the Pacific Ocean. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

Of the 15 criminal charges facing Plains All American Pipeline for alleged negligence in handling the spill, 10 relate to the death or unlawful taking of birds, mammals, fish or reptiles.

Berman, who led the marine mammal collection effort after the spill, said that although she could not definitively say the oil spill was the direct cause of death to many of the seven animals mentioned in the charges, she did say, "Oil in the environment is a major concern," and the response effort "was an enormous undertaking."

In cross examination, lead defense attorney Gary Lincenberg from Bird Marella, asked if one of the mammals could have died from a gunshot wound.

"If there were signs from the necropsies and inspections of open lesions and cervical hemorrhaging," Lincenberg said. "...and if the pictures also suggested that there might have been a puncture area, would those be things that could be possibly suggestive of a gunshot wound?"

Lincenberg went on to ask if a closer examination and necropsy of the animal would have revealed whether it had been shot to death.

Berman said she wasn't present for the necropsy and did not see what it looked like. "To my knowledge, gunshots wounds are fairly uncommon and bite wounds are much more common," Berman said.

After a rapid back-and-forth of multiple one-question-cross and re-cross examinations by Lincenberg and Deputy District Attorney Kevin Weichbrod, having to do with the probability of a gunshot wound being inflicted on a marine mammal, Berman was excused.

The trial continues Friday when the prosecution is expected to rest end its case.

Lila Seidman contributed to this article.