Feds Can’t Show Blasted Pipeline to Jury

SAN FRANCISCO (CN) — The federal government cannot show a jury a 3,000-pound pipe that exploded in the 2010 San Bruno pipeline catastrophe, for its criminal trial against Pacific Gas & Electric, a federal judge ruled this week.
Government attorneys wanted to transport the 28-foot-long pipeline down the streets of San Francisco to have the jury to view it on a flatbed truck outside the Federal Courthouse.
But U.S. District Judge Thelton Henderson ruled on Monday that showing the pipeline segment that flew 100 feet into the air during the explosion six years ago could prejudice the jury, and that risk far outweighs the pipe’s evidentiary value.
“Inviting the jury to examine the enormous, damaged pipe risks an emotional response that is completely untethered from the pipe’s relevance,” Henderson wrote in a 56-page ruling .
The government said it needed to show the pipe to prove PG&E kept inaccurate records. The pipeline is welded, rather than seamless, as PG&E’s records indicated at the time of the blast.
But PG&E has acknowledged that error, Henderson said, and if it were to dispute that discrepancy, he would allow the government show photos of the pipe rather than drag jurors outside to view the mammoth structure.
In one of its 10 motions to exclude evidence, PG&E argued that all evidence of the blast that killed eight people and destroyed 38 homes should be excluded from trial because the blast itself is not an element of any alleged crime.
PG&E is accused of obstructing an investigation of the explosion and violating Pipeline Safety Act regulations that require it to keep accurate records of pipeline tests and repairs.
Henderson refused to bar all evidence of the blast from the trial, as the explosion is relevant to the obstruction charge. The blast was the basis of the National Transportation Safety Board’s investigation, which PG&E is accused of obstructing.
But Henderson did forbid the government from showing the jury any photos or videos of the explosion, dead people, or burns suffered from the blast. He also excluded testimony about the fire, the deaths of loved ones, and any recordings of panic-stricken 911 calls, all of which could prejudice the jury.
Because “the jury is not tasked with determining the cause of the explosion,” Henderson also barred the government from arguing that PG&E’s pressure spikes, hydrotesting or lack of properly kept records caused the blast
Turning to PG&E’s lobbying efforts, the judge found that evidence fair game for the government to use in countering PG&E’s claims that it could not have “knowingly and willfully” violated regulations because they were so “complex and confusing.”
“That PG&E participated in the drafting of the IM [Integrity Management] regulations and lobbied concerning their content is certainly relevant to PG&E’s understanding of those regulations,” Henderson wrote.
But he said the government may not present evidence of PG&E’s improper lobbying and resulting sanctions filed against it unless PG&E opens the door to it by arguing that state regulators failed to properly regulate it.
On the government’s push to present evidence that PG&E prioritized profits over safety, Henderson denied PG&E’s request to exclude evidence on its finances and budget process.
Not all evidence of PG&E’s financial condition will be admissible, Henderson wrote, but the government may attempt to prove the alleged violations stemmed from PG&E’s desire to maximize profits.
Evidence that PG&E’s profit motive drove its non-compliance with Pipeline Safety Act regulations “is not substantially outweighed by the risk of unfair prejudice,” Henderson wrote.
Former employee’s testimony
In January, the government asked to put on the witness stand a former PG&E recordkeeper who found original pipeline surveys in a Dumpster outside PG&E’s Walnut Creek operations facility in 2013.
Leslie McNiece was hired in 2012 to create a new department to overhaul the utility giant’s “recordkeeping deficiencies,” but management rejected her efforts and she was laid off in 2014.
PG&E moved to bar McNiece from testifying, saying the government made misleading claims in arguing that PG&E refused to implement reforms McNiece recommended. The utility says it did adopt a new recordkeeping policy, and planned to make the transition to the new system by 2016.
Henderson found PG&E could minimize through cross-examination any perceived prejudice from the government’s alleged mischaracterizations, and he refused to bar McNiece’s testimony.
But he did forbid McNiece from testifying about documents she found in the Dumpster and records that supervisors told her to destroy. The government acknowledged PG&E was not required by law to maintain those records, and PG&E said the originals had been scanned and digitized in its recordkeeping system.
“Ms. McNiece may testify about the pushback she received, but she may not testify that she was told to destroy any documents,” Henderson ruled.
The government and PG&E were expected to appear in court Thursday for a hearing on PG&E’s motion to continue the trial five weeks beyond the already pushed-back start of April 26.
PG&E says it needs more time to review “a mountain of 110,000 pages of documents” the government improperly classified as privileged and failed to turn over until this month. The government opposes the motion .

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