Second mistrial motion denied in oil pipeline negligence trial

SANTA BARBARA -- Superior Court Judge James Herman on Thursday denied a second defense motion for dismissal of an oil pipeline company's criminal negligence trial that is in its third month and expected to end in three weeks.

The motion to dismiss the case came after Santa Barbara County Deputy District Attorney Kevin Weichbrod asked an official of the defendant, Plains All American Pipeline, "And you're aware that the prosecution in this case cannot call any PHMSA witnesses?"

The question was in reference to an issue brought during multiple contentious hearings, having to do with the federal Pipeline and Hazardous Materials Safety Administration denying the prosecution's request for witnesses.

In a previous examination of Plains CEO Greg Armstrong, Deputy Attorney General Brett Morris, leading the joint state-county prosecution, asked whether Plains and the DOJ had worked out some sort of deal to prevent the prosecution access to witnesses from the agency.

The defense counsel for Plains at that time filed a formal motion to dismiss the case on grounds the jury was prejudiced by the questions. The judge had previously sustained the defense objections, declined to grant a mistrial, told Morris not to ask the questions for which there was no foundation, and told the jury to remember questions were not evidence.

The defense motions for dismissal claimed 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.

In their previous motion for mistrial, the defense called Morris' questioning of Armstrong, "the most shocking example of bad faith in their 100 years of joint practice." Defense counsel includes attorneys from Munger, Tolles & Olson LLP, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC, and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP.

Defense counsel had been particularly incensed previously that Morris asked a form of the question twice more after the objection was first sustained.

On Thursday, Gary Lincenberg of Bird Marella told the judge, "On top of that, they now polluted the atmosphere for this jury by suggesting something that is not only false and incomplete but also improper and in violation of the court's order."

"Without a meaningful remedy, Plains is severely prejudiced by this," Lincenberg said.

When asked for an explanation, Weichbrod said, "We don't have the ability to rebut what Plains has just done. Over the last hour and a half, the court has allowed one of their employees to testify as to what PHMSA told them, what they relied on by PHMSA and there's no ability to rebut them."

Before the dispute that raised the new mistrial motions, Herman told attorneys from both sides the trial should wrap up by the first week of September, depending on the length of the prosecution's rebuttal to the defense's case and whether the defense decides to call more witnesses.

Many of the remaining charges facing Plains have to do with damage to wildlife, allegedly caused by the 140,000-gallon oil spill in 2015. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

During the prosecution's examination of veterinary forensic pathologist consultant Richard Stroud, Morris questioned the witness' opinion that a dolphin, among seven animals the pipeline company is accused of killing with the oil spill, died before the spill occurred. Morris pointed out that Stroud hadn't actually seen the animal carcass.

Stroud responded by telling the court, based on his examination of the chain of custody of the animal carcasses, that they were destroyed shortly after they were examined in a necropsy at a facility at Seaworld.

"They were disposed of, which is in a legal case, destruction of evidence," said Stroud.

Morris asked Stroud whether he knew for certain that the dolphin the defense said was reported to have died of collapsed or atelectic lungs was not killed by oil or bactericides -- the kind released during the spill.

"Do you have an opinion whether or not a bacteriacide or oil toxicity have anything to do with the lungs of this dolphin?" Morris said.

Stroud's explanation for his theory as to why the dolphin died before the spill seemed to be based on multiple factors, one being the animal was reported to be floating when it was found two days after the spill. Stroud explained that when an animal carcass is found floating, it is a sign that internal decomposition has already begun, leading him to believe the time of death predated the spill. Stroud also said the dolphin's reported condition was not consistent with toxic inhalation of oil or bactericides.

"In a respiratory inhalation of an irritant like you're proposing, you would not have ingestion. You would have a reaction by the body to flush that out," Stroud said. "Instead of collapsing the lung, it would fill the lung with fluid. ... It would be more filled out, not collapsed, and atelectic as it was reported."

Later in the examination, Morris asked Stroud how much he was paid for his services as a defense witness.

"Are you being compensated for your testimony today?" Morris said. "And compensated for your work reviewing transcripts and documents and things? ... And how much do you charge per hour for that?"

After replying yes to the first two questions, Stroud said he was paid the standard rate of $350 per hour and he spent roughly 100 hours on the case.

In re-direct, Lincenberg asked if Stroud had been paid to provide expert testimony to both prosecution and defense over the course of his career, to which Stroud said he had.

"Whether you were paid by the government or paid by private parties, for different work you've done over the years, has it ever affected the opinions you rendered?" Lincenberg asked.

"I consider myself to be a forensic scientist, and as a scientist, I am obligated to evaluate something in a manner that is scientifically defendable," Stroud said. "And that's why in a forensic setting in particular, one needs to have a very honest and straightforward, documentable observation."