Prosecutor promises dead pelican won’t testify

SANTA BARBARA — A frenzy broke out in the courtroom Monday after the prosecution attempted to admit the carcass of a large pelican as evidence, promising it would not make any statements, during the criminal negligence trial stemming from the Refugio State Beach oil spill.

Santa Barbara County Superior Court Judge James Herman told the prosecution he would not allow “a dead animal to be brought in and presented to the jury, for all kinds of reasons including, but I’m sorry, catching some sort of disease.”

After a debate over whether or not the bird should be allowed to be physically presented to the jury, defense counsel noticed a carcass wrapped in what appeared to be a cloth or towel and placed in a crate at the back of the courtroom.

“I think the bird is in court,” defense attorney Ariel Neuman of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC said as he pointed to the back of the courtroom. “...There is a 352 issue on actually presenting this dead bird. There can be testimony or photographs or anything there needs be but actually bringing the dead bird in, is highly prejudicial.”

Of the 14 criminal counts facing Plains All American Pipeline for alleged actions and omissions after the 2015 spill, many involve wildlife allegedly harmed or killed by the oil. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

When asked to respond to the argument that presenting the bird would be prejudicial, Deputy Attorney General Brett Morris said the warden or bailiff could hold the bird while it was presented.

“The bird will not make any statements. It hasn’t made any statements since May of 2015,” Morris said. “...We are proposing to just bring it with Warden Norris or we could just have the bailiff bring it in the front line and walk it down the rows so they can actually see it for themselves.”

The pelican, which has been the center of much debate throughout the trial, has been kept for three years in a freezer at the International Bird Resource Center, Fish and Wildlife Warden Anastasia Norris testified later on Monday before both sides rested their cases.

The defense has argued a string-like material wrapped around its beak is fishing wire, while the prosecution argued it was sea grass.

After Herman went back to his chambers and before the jury was brought in, Gary Lincenberg of Bird Marella noticed the bird was still in the courtroom and demanded it be put away before the jury entered.

After the warden and Morris ignored his demand, Lincenberg called for the judge to come back to the courtroom.

“All right, I’ll bring it up with the judge if you’re not going to,” Lincenberg said. “You’re going to have everybody walk by with this thing here?”

The judge then called from the door of his chambers to have an immediate meeting to inspect the bird with attorneys and expert witness from both sides present.

Later in the day, Norris testified as to what transpired in the meeting held in a room next to the judge’s chambers.

“It’s not fishing wire,” Norris said. “It doesn’t look like fishing wire and this morning we actually opened it up outside the presence of the jury and looked at it and it snapped apart, which indicated that it was not graded fishing wire. Wire would tend to be stronger and wouldn’t just break apart.”

By the end of the day, both sides agreed, after closer inspection, that the material was indeed sea grass.

After three months of trial, multiple motions for dismissal, four jurors lost, one for improper attorney contact, and multiple accusations of prosecutorial misconduct, closing arguments are scheduled for Thursday and Friday.

Despite objections from Plains, represented by Munger, Tolles & Olson LLP, Bird Marella, and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP, Herman announced Monday — that after weighing the risk of losing alternate jurors and having a hung jury — he would give the jury a week off after closing arguments.

The People, represented by Morris and Santa Barbara County Deputy District Attorney Kevin Weichbrod, have been accused, on multiple occasions by the defense, of prosecutorial misconduct, chiefly over questions asked of witnesses.

Last week, the defense said Morris intimidated a witness by implying that the witness could be prosecuted if he made certain statements during his testimony.

Herman disagreed with the accusation, and told defense counsel in a previous session that Morris had an obligation to make the witness aware of possible repercussions of his testimony.

“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.