Transcripts show judge unhappy with both sides’ tactics

SANTA BARBARA -- Unsealed transcripts from the closed hearings in an oil spill criminal negligence trial reveal that the judge chastised the prosecution and the defense for trial tactics he fears will cause so many delays there could be a mistrial but vowed it "will not happen on my watch."

During a July 13 hearing that he had closed to the press, Santa Barbara County Superior Court Judge James Herman said the prosecution called a string of adverse witnesses who had no depth of knowledge about the questions being asked, and the defense was over-objecting to questions their client's employees could handle.

The transcripts that Herman ordered unsealed and released on Thursday showed that he felt the jury was exhausted from the trial that began in May and he was displeased that he had read in the press lawyers were estimating the trial would end in September instead of August, as he had planned.

Herman also said the parties are not cooperating on exhibits and unapproved exhibits pop up in the middle of questioning.

The judge and attorneys from both sides were also concerned about a juror's note indicating dissatisfaction with the prosecution questioning, and took that up in another closed hearing on Monday, July 16.

Down already four jurors, the remaining 12 jurors, with two alternates, must determine whether Plains All American Pipeline was guilty of 15 charges of criminally negligent actions and inactions in its handling of the 142,000 gallon oil spill at Refugio State Beach in 2015. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

During the July 13 hearing, Herman asked Deputy Attorney General Brett Morris, leading a joint prosecution with the Santa Barbara County district attorney's office, how long he thought the examinations of the next batch of witnesses would take.

"As I said, we'll do our best subject to, you know, what happens with cross-examinations and other...," Morris began.

Herman cut Morris off mid-sentence. "It's not do our best. The court's entitled to set reasonable timelines," Herman said. "Even with the time qualifying and given that jurors do have other conflicts out there, in significant danger of a mistrial, which will not happen on my watch."

Herman then turned to the defense attorneys. "So now that I've chewed out the People, I'll chew out Plains," Herman said. "There has been significant delay with Plains' objections. Both sides are bringing in evidence and evidentiary issues which take time away from the jury which pushes the time of the jury trial."

The judge then told both the prosecution and defense to streamline their examinations. He said he didn't want either side to ask any further questions having to do with background information.

Herman used subpoenaed, adverse witness James Buchanan's first day testimony, of which the prosecution spent over an hour asking background questions, as an example of excessive questioning.

Morris argued that the reason for the lengthy examinations were not due to the People's questions but to the multiple objections and sidebars brought by the defense.

"With Mr. Buchanan, I specifically had a running timer on myself on. It was less than 59 minutes and yet, it was an hour and a half of time that I was up there," said Morris. "So 30 to 40 minutes were sidebars and objections and other discussions and I think the timing on the cross was even longer than the 59 minutes."

Morris then told the court that the estimated end date to the prosecutions examination's was originally scheduled for July 13. He said the delay was mostly due to absent witnesses and misunderstandings with Plains employee witnesses that led to scheduling conflicts.

Herman said he wanted to finish questioning of the prosecution's witnesses the following week and that he would push for additional half days for the remainder of the trial.

The prosecution said it would finish its case in chief on Friday, July 20, and did so subject to calling two witnesses in August.

Morris also told the court on July 13 he was concerned about a juror who had written four notes that seemed to put the juror's ability to be objective into question.

"He's had three prior notes that have some indication of some concerns," Morris said. "I think you should voir dire him about, you know, if there's some bias or if there's some issue that we're not seeing."

Herman then read the juror's note, in closed hearing, three days later: "Ask, in a workplace environment, whether someone understands a concept as basic as 'one hour' could be construed bullying, particularly if this demand occurred in public, without provocation and in the opening of a dialogue. Perhaps such behavior is still condoned in courtrooms, in which case kindly, disregard."

The juror's note came after a tense examination the previous Friday by the prosecution, in which Morris asked Buchanan whether he knew what "one hour" means.

"You've spoken English your entire life, yes?" Morris said to Buchanan. "Do you know what 'immediately' means?"

The examination of Buchanan was particularly adversarial. An environmental compliance official for the pipeline company, he is the only person originally indicted along with the company. But before the trial began, a motion was filed alleging the prosecution withheld exculpatory evidence when it obtained a grand jury indictment of Buchanan and all criminal charges against him were dropped.

After the judge had read the juror's note out loud, Morris said that he had received three other juror notes with a similar tone and he felt that an investigation was in order to find out if the juror had been prejudiced.

"I think the judge or parties in chambers asking just a couple of questions about understanding that this is an adversarial process," Morris said. "If he is understanding the concepts of pushing somebody, demeanor, the witness' response, their view of legal understandings versus what he calls as a concept as basic as one hour."

Morris said that it was incumbent on everyone involved in the case that if it was found out that the juror was prejudiced, that he should be removed.

Herman then gave the defense team for Plains a chance to respond. Luis Li of Munger, Tolles & Olson LLP, argued that the juror should not be questioned, saying that his team could not find a single case in which the court had questioned a juror about how he or she had received a prosecutor's examination of a witness.

"Every lawyer knows that when you cross-examine a witness, you have to decide what tone you'll take with that witness and every lawyer knows that the harder tone you take, you might provoke a reaction," Li said.

Li then pointing out that the juror's note had indicated that if asking a witness if he understood "what one hour meant" wasn't considered bullying, to disregard the note.

Herman then told the attorneys he would not question the juror in private but would issue a blanket statement to the jury as a whole not to decide the case on any preconceived notions of what may or may not be appropriate workplace communication.

Herman said he would tell the jury, "Decide this case totally on the facts and the law that are presented in court and not any preconceptions about rules and formalities that might exist in the contexts outside the courtroom."