Judge likely to deny defense acquit or retry motion in oil spill case

An oil company convicted in September of one felony and eight misdemeanors related to its handling of a 140,000-gallon spill on Refugio State Beach has asked the judge to reverse the jury verdict and acquit or grant a new trial on three of the nine convictions, including the felony.

Santa Barbara County Superior Court Judge James Herman, who had a number of mistrial motions during the four-month jury trial, has indicated he is likely to deny the motion but will not rule until Jan. 9.

If Herman denies the motion, Plains All American Pipeline would likely have to pay much larger fines related to the convictions and would be known as a convicted felon, unless its attorneys successfully appeal.

Plains, represented by lead counsel Gary Lincenberg of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Row PC and co-lead Luis Li of Munger Tolles & Olson LLP, seeks post-trial relief based on prosecutorial misconduct, inaccurate jury instructions and insufficiency of evidence. People v. Plains All American Pipeline LP, 1495091 (Santa Barbara Super. Ct., filed May 16, 2016).

According to a previous defense motion filed in October, "The prosecutors misrepresented evidence, made false statements about facts not in evidence, falsely suggested conspiratorial agreements between Plains and the federal government, and openly defied the court's evidentiary rulings."

The prosecutorial misconduct Lincenberg and Li call "bad faith questioning" in their motion refers to a July examination of Plains CEO Greg Armstrong in which Deputy Attorney General Brett Morris, representing the state, asked Armstrong in front of the jury, "Have you worked out any agreements with the EPA officials or USDOJ regarding the May 2016 oil spill?"

Morris later told the court in a hearing that federal agencies and the U.S. Department of Justice specifically stood in the prosecution's way by inhibiting his ability to use federal employees as witnesses during the trial.

Afterward Herman said, "At this point, Mr. Morris, you have no information except some sort of suspicion that something's going on."

Herman also later admonished the joint prosecution team of the attorney general's office and the Santa Barbara County district attorney's office, saying the insinuation of a conspiracy was "totally inappropriate."

According to Plains' reply motion filed Dec. 3, the prosecution responded to accusations of bad faith questioning of Plains' CEO by arguing that they had, "some evidence of communications between Plains and the federal officials."

Plains argued that communications between a pipeline company and the federal government is nothing out of the ordinary and is "a far cry from a good faith basis to ask a question about whether Plains conspired with the United States Department of Justice to prevent the people from calling witnesses at trial."

The motions largely focused on prosecutorial misconduct allegations but also argued special instructions should have been made to the jury to counterbalance bias caused by the prosecution's inappropriate questions. According to the defense motion, the prosecution's only response was that the court had the right to refuse party-biased instructions.

Neither of the offices handling the prosecution was reached before press time to comment on the defense motion.

Nevertheless, Plains' motion, signed by Lincenberg, persisted in the argument, saying:"The California Supreme Court has agreed that when a prosecutor engages in misconduct, a one-sided instruction that explicitly rebukes the prosecution is not only appropriate, but necessary." People v. Bolton (1979) 23 Cal. 3d 208, 216.

Plains seeks relief from its convictions for the felony, "knowingly discharging oil, or reasonably should have known that its actions would cause the discharge of oil, into the waters of the state," plus misdemeanors involving "knowingly failing to follow a material provision of an applicable oil contingency plan" and "unlawfully discharging oil or waste to surface or subsurface waters or land by oil field operations."