Judge rejects oil spill trial defense charge of prosecutor misconduct

SANTA BARBARA -- Defense counsel accused a state deputy attorney general of misconduct and intimidation of a witness in an oil company's criminal negligence trial on Friday, leading the judge to ask if there was a plan to prosecute the witness, a former California employee now working for the defendant.

The lead prosecutor said he had no plans to bring charges against the witness, though others might, but had only warned him pretrial about possible legal liability. The judge agreed that no intimidation had occurred.

After an objection-peppered prosecution cross-examination of Mark Crossland, a former officer with the state Department of Fish and Wildlife Office of Spill Prevention and Response, defense attorney Luis Li of Munger, Tolles & Olson LLP said Deputy Attorney General Brett Morris had intimidated the witness.

"The state has threatened this witness with criminal prosecution if he testifies against the state's interest," Li told Santa Barbara County Superior Court Judge James Herman outside the jury's presence.

Crossland was a state employee at the time of the 2015 oil spill on Refugio State Beach and now is employed by defendant Plains All American Pipeline as an emergency response manager. Plains is charged with criminal negligence for actions and omissions before, during and after the oil spill in a case being prosecuted jointly by the state attorney general's office and the Santa Barbara County district attorney's office.

Questioning Crossland before the jury, Morris brought up the fact that Crossland was once the on-scene coordinator and enforcement officer for the state during the cleanup effort after the 142,000-gallon spill. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

"After you left the state of California, you started working for somebody that was involved in a case you were previously working on?" Morris asked.

As Morris continued asking questions that highlighted those facts, Li began objecting in rapid succession, eventually requesting a sidebar on three separate occasions.

At the break, outside the presence of the jury, Li explained his reason for objecting and requesting a sidebar.

"What the state has essentially said is, if you testify about factual matters to which you were a participant witness, the state is attempting to lay a foundation and threatening this witness with criminal prosecution. It isn't right, your honor," Li said.

Later, Crossland's personal attorney, Michael Proctor of Durie Tangri LLP, said he had a conversation with the state prosecutor in February during which Morris advised Crossland that if he, during his testimony, violated the Political Reform Act of 1974, Code 87401, he could be prosecuted. Proctor then gave his account of what Morris had said to his client.

"There are provisions of the Political Reform Act of 1974 that could possibly be violated if Crossland, pursuant of a subpoena, testify truthfully to the facts that he observed, if Mr. Crossland's testimony was not, and I quote, 'in the interest of the state of California,' end quote," Proctor said. "I don't know what the intent is, your honor, but that is a very intimidating thing to say. If that came from the other side, we'd be talking about obstruction or persuasion of a witness."

According to Proctor and Li, Morris had requested that the court admonish Crossland about the provision before he gave his testimony.

Proctor said that the specific provision states that, "If you are a former state administrative official, and secondly, you, for compensation, act as an agent or lawyer in a judicial or quasi-judicial proceeding, you can't do that if you previously substantially participated in that same judicial or quasi-judicial proceeding."

He argued the provision didn't apply to his client, who was acting as a subpoenaed witness and not a lawyer or agent on behalf of Plains. Proctor said the purpose of invoking the code was simply to "get into the witness's head."

"We wrote the prosecution team, 'Where are you coming from making this advisement when Crossland isn't acting as a paid representative?'" Proctor said.

After hearing Li's argument, the judge asked Morris, "Are you intending to prosecute? Are you threatening prosecution?"

"No, your honor, and you know, the People didn't pollute the ocean but it seems every time we come here about a complaint, it's something the government did wrong," Morris said. "You hear the first half of the story, which is an accusation that we had threatened somebody. ... There was no threat. ... They can call it a threat. That's fine but that's setting you up for a misrepresentation of what's going on."

Morris recounted the conversation he had with Proctor in which Morris advised the lawyer and his client that if Crossland was involved in any controversy or official matters as a former state representative, that Crossland should be aware he was now representing Plains and not the state.

The judge then asked if the prosecution is planning to ask any questions that may leave the witness criminally liable.

"That's not up to me. ... We're not going to prosecute anybody in this case," Morris said. "Other offices might, but that's not my concern... I am not threatening to prosecute."

Herman ultimately decided the questioning was not intimidation

"It is his duty as a prosecuting authority to tell a witness coming into court that that witness might have some sort of legal liability, to not ignore that and to tip off the witness and witness' counsel that there is an issue there that needs to be resolved," Herman said.

Li then cited a case, United States v. Ruehle, in which he said it was found that a prosecutor had intimidated a witness by informing her that she may face perjury charges if she testified to what she believed was truthful.

Li said he believed the state had committed misconduct and that Plains -- represented by Munger Tolles; Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC; and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP -- would submit a formal motion, including correspondence and records of conversations he said shows the alleged intimidation.

The trial began in May and is estimated to conclude in September.