Necessary Evil

You may recall the aborted September 2014 criminal trial of two climate activists, Ken Ward and Jay O’Hara, who blocked a coal shipment headed for the Brayton Point Power Plant in Somerset, Massachusetts on May 15, 2013 in an act of civil disobedience. Ward and O’Hara had planned to present a necessity defense at their trial, arguing that the threat posed by carbon pollution justified their actions.

The Ward/O’Hara trial was aborted because the prosecutor in the case, then-Bristol County District Attorney Samuel Sutter, decided to drop criminal charges against the defendants on the day the trial was scheduled to begin. Sutter did so because he, too, recognized the gravity of the climate crisis, and concluded that Ward and O’Hara were concerned citizens, not criminals:

Six days before the aborted Ward/O’Hara trial, five climate activists in Washington state engaged in a similar act of civil disobedience by blocking a BNSF Railway train transporting oil. The activists–Abby Brockway, Michael Lapointe, Patrick Mazza, Jackie Minchew, and Liz Spoerri, collectively known as the “Delta Five” (in reference to the railyard where the civil-disobedience action took place)–had also planned to present a necessity defense at their trial, arguing that the risks of shipping oil by rail–and the risks of our continued dependence on the fossil fuels that have contaminated our climate–compelled them to act.

As it turns out, the use of the necessity defense was ultimately blocked by the presiding judge:

After three days of testimony from a climate scientist, an energy policy expert, a hazardous materials safety consultant, a doctor, and a BNSF whistleblower regarding the threats posed to communities by the transport of crude oil by rail, Snohomish County Judge Anthony Howard told defendants in the Delta 5 trial that he would not instruct the jury to consider their “necessity defense.” (In essence, a legal maneuver arguing that the harm of whatever was being protested exceeds the harm caused by the civil disobedience itself.)

Previously, Judge Howard had reversed an earlier ruling that denied a motion to present the necessity defense on behalf of the five people who blocked BNSF train tracks in a September 2014 oil train protest. As a result, the defendants’ lawyers were given a rare opportunity to present “necessity defense” evidence: testimony that the harm posed by business-as-usual crude oil train traffic on those tracks—including the greater context of climate change—is greater than the harm posed by their act of civil disobedience.

According to the supporters of the Delta 5, this was the first time that a necessity defense for climate disobedience had been heard in a US court.

Still, Judge Howard had not fully determined—until yesterday—whether he would give the necessity instruction to the jury. The judge noted he had been urged by the defendants’ lawyers not to rule on the necessity instruction until after the jury heard expert testimony.

On January 15, the “Delta Five” met their fate:

Five Washington activists who blocked BNSF Railway tracks were convicted of trespass Friday in a Snohomish County District Court trial that defense attorneys used to showcase the environmental and health threats posed by trains transporting oil and coal.

A six-person jury reached guilty verdicts on misdemeanor trespass charges for all five defendants. The defendants were found not guilty of the additional charge of obstructing or trying to delay trains.

Their protest, which lasted for eight hours, unfolded Sept. 2, 2014, on a BNSF rail yard in Everett as they sought to draw attention to the risks of coal and oil trains that travel through the state.

Defendant Abigail Brockway positioned herself some 20 feet off the ground on top of a metal tripod while the four others — Patrick Mazza, Jackie Minchew, Michael Lapointe and Liz Spoerri — chained themselves to the structure’s legs.

The trespassing count carries a sentence of up to 90 days in jail.

The defendants have already spent one day in jail, and they received a suspended sentence for the other 89 days as well as two years of probation. Four of the defendants also must pay $553 in fines and fees, according to Bob Goldsmith, an attorney for Brockway.

Their protest, at a site called the Delta yard, sought to highlight the risks of the fossil-fuel train traffic and galvanize support for curbing the shipments and improving rail safety.

This verdict has been hailed as a victory for the climate movement, and I’m certainly relieved that the “Delta Five” will not be thrown into prison for their principles. However, I am also relieved that the judge instructed the jury not to consider the necessity defense; had the “Delta Five” been acquitted on these grounds, it could have opened up a Pandora’s box of perverse brutality in this country.

Remember when the anti-abortion Christian terrorist who murdered Dr. George Tiller in 2009 tried (and failed on technical grounds) to use a necessity defense in his trial? As much as I admire the “Delta Five” activists, I feared a scenario whereby they were acquitted on necessity-defense grounds–and their acquittal set a precedent that the radical anti-abortion movement could exploit to potentially get away with future Tiller-style crimes, effectively making abortion access even more difficult in the United States. Call me hyper-cynical, but there are plenty of anti-choice right-wingers in this country who, if empaneled on a jury in a case involving a future Tiller-style crime, would not hesitate to acquit the defendant on the grounds that the defendant sincerely believed he or she was acting out of necessity to “save the babies.” In their warped minds, the only thing that stops a “bad guy” with a medical degree is a “good guy” with a gun. (In addition, the prospect of an ultraconservative, religiously fundamentalist state judge allowing a defendant in a future Tiller-style case to present a necessity defense, and to instruct jurors to consider it during deliberations, cannot be easily dismissed; one simply can’t put anything past robed reactionaries.)

The idea of a climate activist being acquitted of an act of civil disobedience via the necessity defense makes me extremely nervous. If such an event occurred, what would stop the coathanger crowd from using similar legal tactics to advance what they see as morally justifiable ends? In the name of fighting climate chaos, are we not potentially opening up a door for chaos of another sort?

UPDATE: More from the New York Journal News, the Everett Herald and Yes! Magazine.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.