State Bar complaint filed against lead prosecutor in oil spill case

While the Refugio Oil Spill criminal trial may be over, a State Bar inquiry into alleged misconduct may be just the beginning for lead prosecutor Deputy Attorney General Brett Morris after a complaint was filed against him in connection with the case.

After the jury verdict was read Friday, finding Plains All American Pipeline guilty of nine of 15 charges relating to negligence in the handling of a 140,000 gallon oil spill in 2015, Morris told Santa Barbara County Superior Court Judge James Herman he wanted him to pursue an evidentiary hearing into who may have released sealed documents revealing a judicial finding that the prosecution team had withheld exculpatory evidence from a grand jury.

After Morris made multiple requests for a court inquiry regarding a possible violation of the sealing order, Herman said Morris could bring evidence and set a hearing, but the judge declined to get involved in any discussion of misconduct accusations, noting that was up to the bar. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

The documents in question, which are now unsealed, show that before the trial Herman had dismissed one count against James Buchanan, an individual indicted for allegedly failing to report the spill in a timely manner, due to the prosecution team withholding Buchanan's cell phone records from the grand jury, despite their requests for them.

The records showed Buchanan had made numerous calls during the time of the spill.

Herman wrote in his Oct. 23, 2017 order to set aside the indictment, "The grand jury's request for this information leaves the court with serious doubt as to whether a properly informed grand jury would have declined to find probable cause to indict Buchanan on Count 7."

Morris told the court last Friday, after learning that Buchanan's lawyer, Denver-based attorney Douglas Richards, had filed a complaint with the bar alleging prosecutorial misconduct, that he thought Richards had leaked the sealed documents.

Richards confirmed in a phone call Tuesday that he had filed a complaint with the bar.

"Mr. Morris violated fundamental ethical canons in hiding evidence from the grand jury in his pursuit to indict an innocent man," said Richards. "The court order granting my Johnson motion speaks for itself and confirms Mr. Morris' misconduct."

Morris declined response to multiple requests for comment about the actions of the joint prosecution team from the attorney general's and Santa Barbara County district attorney's offices.

Santa Barbara County District Attorney Joyce Dudley said in a phone interview Tuesday that she could only speak about the trial in broad terms. "The fact that the jury convicted Plains of a felony, which I believe is historic, is a statement that the court is holding Plains accountable for criminal actions," she said.

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.

Fellmeth said despite being a prosecutor for many years himself, he was glad the State Bar was looking into the prosecutors' misconduct and that they might issue Morris a letter of reproval after investigating the matter further.

"Hypothetically, if they knew the grand jury asked for it, the grand jury wanted it, they had it and didn't produce it, and it was highly relevant to the grand jury's decision, then I think something should happen to those attorneys," Fellmeth said.

Accusations of prosecutorial misconduct seemed to be a running theme throughout the Plains criminal trial. Multiple motions for a mistrial based on alleged prosecutorial misconduct were filed by the Plains defense team and other attorneys representing subpoenaed witnesses.

In August, the prosecution was accused of intimidating a witness when, according to a motion filed by Michael J. Proctor, now with Durie Tangri LLP, Morris told the witness he could be prosecuted if his testimony was "against the interests of the state of California."

When Herman asked prosecutors if they had planned to prosecute the witness, Morris said he had no intention to bring charges against him, though others might.

Morris said he had only warned the witness about possible legal liability. The judge ultimately agreed no intimidation had occurred.

Another motion to dismiss came in July, after Morris insinuated that EPA officials and the U.S. Department of Justice had conspired with Plains CEO Greg Armstrong to deny the prosecution access to key witnesses.

"Have you worked out any agreements with the EPA or the USDOJ regarding the May 2015 oil spill?" Morris said during direct examination of Armstrong.

In a motion to dismiss, the defense team called Morris' question of Armstrong, "the most shocking example of bad faith in their 100 years of joint practice."

The judge ultimately denied the motion and all other motions to dismiss the case.

Plains was represented by Munger, Tolles & Olson LLP, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC and Fell, Marking, Abkin, Montgomery, Granet & Raney LLP.

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