NY Times, October 10, 2009
Legal Cost for Throwing Monkey Wrench Into the System
By KIRK JOHNSON
SALT LAKE CITY — Tim DeChristopher became convinced last year that
global warming’s potential effects were so urgent and dire that direct
action was needed. The niceties of debate and environmental lobbying
were not getting the job done, he said.
So in December Mr. DeChristopher went to a federal auction of oil and
gas leases — offered in the Bush administration’s closing days and even
then the subject of protests and lawsuits — and bid on contracts that he
had neither the money nor intent to actually fulfill.
“My intention was to cause as much of a disruption to the auction as I
could,” said Mr. DeChristopher, a soft-spoken 27-year-old economics
student at the University of Utah. “Making that decision — that keeping
the oil in the ground was worth going to prison — that was the decision
I made.”
Now, as his federal criminal case nears trial — he is charged with two
felony counts of interfering with an auction and making false statements
on bidding forms — a broader debate with legal, political and
environmental threads is unfolding from here to Washington about what he
did and what it means.
Was Mr. DeChristopher a lone-wolf grandstander whose actions changed
nothing, just another lawbreaker or the spark for a new protest
movement? Given Mr. DeChristopher’s passionate public admissions —
though he has entered a plea of not guilty — how will the judge frame
the discussion of guilt or innocence before a jury? And will federal
energy policies be in the docket with him, as he hopes, up for critique
as part of his defense?
“Bush and the B.L.M. should be on trial here,” said Mr. DeChristopher’s
lawyer, Ronald J. Yengich, referring to the federal Bureau of Land
Management, which oversaw the leasing process.
Mr. Yengich, a veteran of civil rights battles in Utah — he defended
protesters against President Jimmy Carter in the 1970s and anti-nuclear
activists in the 1990s — has asked Judge Dee Benson of Federal District
Court to allow a so-called necessity defense at the trial. That would
enable Mr. DeChristopher to argue that he faced a “choice of evils” that
justified breaking the law.
Legal scholars say such defenses are rarely allowed by judges and are
rarely successful with juries. Judge Benson is expected to rule within
the next month.
What is not in doubt is that most of the specific leases Mr.
DeChristopher protested — many of them near national parks or monuments
— have not only been deferred or taken off the table by federal land
managers in the Obama administration but also scathingly disavowed. A
federal judge earlier this year ordered the leases halted pending
further review, citing “deficiencies” in the government’s pre-auction
assessments.
Just this week, Interior Secretary Ken Salazar, whose agency oversees a
huge swath of the nation’s public lands, went even further. “There was a
headlong rush to leasing in the prior administration that led to the
kinds of shortcuts we have demonstrated,” Mr. Salazar said Thursday in
releasing a report about the December auction.
In their court filings, federal prosecutors argue that whether Mr.
DeChristopher was on some level correct in opposing the leases is
irrelevant. Laws were broken, they say. And unlike cases where necessity
defenses have been allowed — the classic law-school example is the man
lost in the mountains who finds a cabin and must break in to survive —
Mr. DeChristopher had legal means of protest he could have chosen,
prosecutors say, notably a court challenge that was under way by
environmental groups even before the auction.
Mr. DeChristopher’s supporters say that the logic is faulty — that the
legal challenges and critical government reviews took the course they
did in part because of the attention Mr. DeChristopher drew to the issue
by putting himself on the line.
“It started an avalanche, and the story caught on,” said Ashley
Anderson, a friend of Mr. DeChristopher and co-founder of Peaceful
Uprising, a group that seeks to expand on Mr. DeChristopher’s actions.
The group is organizing what Mr. Anderson said would be a major rally
for later this month to support talks to reduce emissions of
heat-trapping gases.
“Tim woke a lot of people up,” Mr. Anderson said.
If convicted, Mr. DeChristopher faces up to five years in prison on each
of the two counts and up to $750,000 in fines.
Legal scholars say case law about the necessity defense, especially in
civil disobedience or protest cases, usually requires that a complicated
series of hurdles be cleared. Defendants must show that they faced a
choice of evils: to break a law or to allow some other bad result to
proceed.
Part of the framework requires a judge, or a jury, to weigh how bad the
result would have been, and for whom, if the defendant had not acted,
and how imminent the harm actually was.
“The evil you choose must outweigh the evil you avoid, based on some
kind of objective judgment about what is the greatest social net benefit
in the situation,” said Marc O. DeGirolami, an assistant professor of
law at St. John’s University in New York.
Even if Judge Benson prohibits a formal necessity defense, it is
possible a consideration of Mr. DeChristopher’s intent, and thus a
discussion of government impropriety, could seep into the proceedings. A
witness who blurts out something about government failings or the threat
of global warming could plant a seed of alternative interpretation — or
doubt — in the minds of jurors.
“He’s not trying to get 12 jurors to agree with him; he only needs one,”
said Paul G. Cassell, a professor of law at the University of Utah and a
former federal judge. “And on any jury there could be at least one avid
environmentalist or outdoor enthusiast that could prove fertile ground
for DeChristopher’s arguments.”
In a way, Mr. DeChristopher said, the findings about the leases since
the auction have already vindicated him.
“I thought of yelling something or throwing a shoe,” he said, recalling
the auction day. “What I did was far more effective than I could have
been with a shoe.”
John M. Broder contributed reporting from Washington.
_______________________________________________
pen-l mailing list
[email protected]
https://lists.csuchico.edu/mailman/listinfo/pen-l
