Oil spill prosecutors denied exculpatory evidence to grand jury, sealed records show

SANTA BARBARA -- The prosecution team in the Refugio oil spill criminal negligence trial failed to disclose potentially exculpatory cell phone records to grand jurors, despite their request, leaving them with a false impression that a pipeline employee did little for more than an hour after being notified of the emergency, according to sealed documents in the case.

In an Oct. 23, 2017 order, Santa Barbara County Superior Court Judge James Herman dismissed a charge of failure to timely notify authorities that had been brought against James Buchanan, the only individual charged in the case.

Herman granted the Johnson motion to set aside the indictment for failure to present and consider exculpatory evidence brought by Buchanan's Denver-based attorney, Douglas Richards of Richards Carrington. Johnson v. Superior Court, 15 Cal.3d 248, 254 (1975).

The prosecution, which argued at a closed hearing that the cell phone records were not exculpatory, dropped a remaining charge against Buchanan on the eve of trial, leaving Plains All American Pipeline company the only defendant, facing four felonies and 11 misdemeanors. The original indictment had included 46 counts.

The case goes to the jury Monday after four months of testimony, contentious sidebars and hearings, two defense motions for mistrial, the appearance of a pelican carcass in the courtroom, and the dismissal of four jurors, one for talking to a state prosecutor.

DUDLEY

A joint prosecution team from the state attorney general's office and the Santa Barbara Country district attorney's office obtained the indictments alleging criminal negligence, unlawfully causing the deaths of seven marine animals and birds, and failure to follow state regulations for handling a hazardous spill.

The state says 140,000 gallons of oil spilled onto Refugio State Beach near Santa Barbara and into the ocean on May 19, 2015, while the defense says it was closer to 120,000 gallons, one fourth of which entered the ocean. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

According to sealed documents obtained by the Daily Journal, the judge emphasized he did not need to speculate on whether "a properly informed jury would have declined to find probable cause to indict had it known of the omitted evidence." Berardi v. Superior Court, supra, 149 Cal.App.4th at 495.

"The grand jury said: 'We need the phone records of Buchanan,'" Herman wrote.

Herman added, "The prosecution did not provide all the cell phone records it had. It only provided the land line records, even though the prosecution had previously indicated to the grand jurors that the initial contact ... occurred by cell phone."

The file obtained by the Daily Journal also revealed that the grand jury specifically asked the prosecutors to cross reference Buchanan's outbound and inbound calls, and they did not do so.

Buchanan, the pipeline company's environmental and regulatory compliance officer, was in Bakersfield on the day of the spill, and was initially indicted on three misdemeanors.

A call log showing what the prosecution originally presented to the grand jury shows only 17 landline calls made or received by Buchanan from 1:25 p.m. to 3:45 p.m. on the day of the spill. It also identifies only three numbers called, one to Kathy Randall, an operations supervisor at Plains who initially told him of the spill, one to the Environmental Protection Agency's National Response Center, and one to the Governor's Office of Emergency Services.

Richards

When the cell phone and other communication records were added, as shown in a document that was submitted as exculpatory evidence, there were 57 calls or texts and 12 emails Buchanan sent and received during that time period to higher ranking employees and supervisors at Plains.

Buchanan's attorney, Richards, wrote in the Johnson motion that "by withholding this evidence, the people permitted -- if not encouraged -- the grand jury to draw the false inference that Mr. Buchanan did almost nothing during the critical time period."

During an October closed hearing, Deputy Attorney General Dennis Beck explained why the prosecution did not give the grand jury the cell phone records. It "would only have confirmed what the evidence had already shown them, that he was making these calls in these specific categories. ...,There was no exculpatory admissible evidence that was presented by Plains by way of a sworn declaration or an offer by Mr. Buchanan to come in and testify that would have further illuminated the substance of the calls ...," Beck said.Plains is represented by Munger, Tolles & Olson LLP; Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC; and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP.

Before giving his explanation for the dismissal of the charges, Herman noted in his order that Plains' defense counsel waited two weeks before the expiration of the statute of limitations for misdemeanor charges to submit its letters and documents on May 3 and 5, 2016. That gave the grand jury two weeks to decide whether to indict on misdemeanor charges.

"The exculpatory evidence left very little time to consider it or follow up," Herman wrote.

The exculpatory letter from Plains included a copy of the U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration regulations stipulating that at the time of the spill, the term "immediately" meant one to two hours. The company argued that, had the grand jury been made aware of the federal agency's definition of the term "immediate," their decision to indict Buchanan on the other charges would have also been affected.

The defense argued that the prosecution gave the grand jury a misleading impression that the term "immediately" was not technically defined by any state or federal regulation.

"There is no definition, no further clarification in the law about what is 'immediate'... but it's reasonable to assume that 'immediate' means much less than 75 minutes," the prosecution told the grand jury during a hearing the judge quoted in the motion.

The transcripts also revealed the prosecution mentioned the exculpatory letter sent by the defense as well as the federal guidelines included in it, but said because the document could not be verified, they did not submit the order into evidence.

In the order, Herman found Buchanan had indeed offered authority that "immediate" meant one to two hours under the federal agency's regulations, yet prosecutors failed to present it to the grand jury.

"The prosecutor says there is no authentication of the documents and they have no idea where it came from," Herman wrote in the filing. "As attorneys, the prosecutors can identify and authenticate a public record about the enactment of a law."

Nevertheless, the judge said he was not convinced that it would have necessarily been relevant to what constitutes "immediately."

"While the court is not convinced that PHMSA orders are necessarily relevant to what constitutes 'immediately' reporting under state law, the circumstances related to gathering information could be. To that extent, the other communications Buchanan was making would be relevant," Herman wrote.

Robert Fellmeth, a professor of public interest law at the University of San Diego School of Law and a former State Bar discipline monitor, said California is one of the strictest of the few states requiring prosecutors to present exculpatory evidence to grand juries. Unless the phone calls were irrelevant to the violation in this case, they should have been disclosed, Fellmeth said.

"If the gist of the violation is a failure to communicate, the fact, number, and person called is highly relevant," Fellmeth said.

Sanctions could have been placed on the prosecution for not disclosing the evidence, Fellmeth said, adding, "... to me that's something where at least a letter of reproval would be appropriate. Something beyond simply, 'You didn't get the indictment.'"

The State Bar is paying more attention to prosecutors now, resulting in more sanctions, Fellmeth said.

The attorney general's and district attorney's offices, and the individual trial prosecutors, were asked for comment.

Santa Barbara County District Attorney Joyce Dudley replied in an email: "Since the jury is about to begin their deliberations, I don't want to interfere with the sanctity of that process. I look forward to answering your question after the jury has reached its verdict."