"look for the anti-abortion wackos to try the same defense every time they blow up a clinic."

Did you think that up until now they had not?

The common law defense of necessity is (to put it mildly) highly disfavored by the state and federal courts.

A few years ago, our law firm represented a couple of Greenpeace demonstrators who were charged with criminal trespassing as part of a creative, nonviolent protest against Dow Chemical's discharge of dangerous effluent into the Great Lakes water basin. As appears to be happening in Mr. DeChristopher's case, the prosecution successfully persuaded the judge to bar any testimony about necessity (imminent public health hazards from toxic waste being discharged into the river system) by bringing a pretrial motion. Similar efforts to raise the defense of necessity on behalf of persons protesting at nuclear power plants and nuclear weapons facilities have been similarly thwarted. Despite the setback, I am pleased to report the Greenpeace folks nevertheless were found not guilty of trespassing by a local Midland, Michigan jury.

The defense of necessity is actually a variation upon self defense/defense of another in ordinary criminal prosecutions involving charges of assault or even homicide. The politically-motivated defendant wants to educate the jurors about the evils of environmental degradation, nuclear meltdowns, nuclear war, and so forth, in order to then argue that their actions were sincere, in the public interest, justified, and therefore not criminal. The government of course vehemently seeks to destroy that platform before it can even be constructed. The bottom line is, much as I deeply admire Mr. DeChristopher's substantive politics, he is pissing upstream into a very strong current on both the law and his particular, unique fact setting.

In a related matter of current interest and controversy, one should think for just a moment about the defense of necessity as it relates to the infamous "ticking time bomb" scenario justification for engaging in the crime of torture.

In my view, the existence of a necessity defense is what renders the flat, no-exceptions, unequivocal prohibition upon torture perfectly appropriate. If there really is a ticking bomb, and there really is an imminent risk of public harm if the suspected evil doer in custody won't divulge to the authorities how the bomb can be located and defused, then the good faith interrogators who step over the legal line to save the innocent chillun of Metropolis will be acquitted (if they ever do get criminally charged at all).

Dirty Harry and Gary Bauer don't need or deserve a grant of immunity. They've got the defense of necessity available to them, the same as Mr. DeChristopher and all the rest of us do. They proceed at their own risk. Which is precisely as it should be.

Bill from Saginaw

This poor fella is getting prosecuted for no intent to pay. Mortgage brokers did the same with applicants for loans that they knew damn well the buyers couldn't pay for, didn't qualify for and we bailed them out. Now they banks that were part of the scheme are paying themselves bonuses with the bailout money. Bidder 59 didn't steal enough. That's his problem. If he had collapsed the economy with his actions he would have been to big to fail.

Bill from Saginaw has the definitive assessment...and well anyone even remotely familiar with the law knows it.

The law is a monolith that has never been confronted with this scenario before: that "business as usual" is equivalent to indiscriminate mass slaughter. In this light, and as a monolith, the law will certainly protect the wrong party. It is too much to expect a new opinion, based on "new" (c. 20 y/o) facts.

Legal or ideological parallels with torturers and abortions are meaningless. There is no parallel for this scenario; not on our timeline, anyway.

Tim DeChristopher has done something infinitely more dangerous, more radical and revolutionary than killing an abortion doctor; he has struck at the whole idea of the 'sanctum sanctorum' of power, and what is necessary for people of conscience to do--to storm (or sneak over) the palace gates. And it is that homicidal idea that the courts, as part of that status quo, seek to uphold, even as it brings us closer to worse disaster than we could ever imagine.

We cannot, as a people, see Tim go unpunished, because he threw the idea into stark relief as what it is--insanity. He must be made an example of!

But we know in our hearts: Tim's act is an invitation, an invocation for ALL of us to do as much.

"Defenders of the short-sighted men who in their greed and selfishness will, if permitted, rob our country of half its charm by their reckless extermination of all useful and beautiful wild things sometimes seek to champion them by saying the 'the game belongs to the people.' So it does; and not merely to the people now alive, but to the unborn people. The 'greatest good for the greatest number' applies to the number within the womb of time, compared to which those now alive form but an insignificant fraction. Our duty to the whole, including the unborn generations, BIDS US RESTRAIN AN UNPRINCIPLED PRESENT-DAY MINORITY FROM WASTING THE HERITAGE OF THESE UNBORN GENERATIONS. The movement for the conservation of wild life and the larger movement for the conservation of all our natural resources are essentially democratic in spirit, purpose, and method."
Theodore Roosevelt
A Book-Lover's Holidays in the Open, 1916

First of all the D of Interior has declared the whole auction illegal, Bush rushed it through without the proper prerequitists.

This so called crime happened in the past.

Obama cannot prosecute war criminals but he has no problem prosecuting a TRUE AMERICAN HERO.

I hope this opens the eyes of the enchanted who are still hoping Obama will create positive change.

The necessity defense should _always_ be allowed. Simply mounting a defense doesn't mean one will be acquitted!

In a democracy, we are supposed to trust that a jury of peers, fairly chosen, will decide if a defense has merit. The necessity defense was used successfully in Ireland by the Pitstop Ploughshares activists - who badly damaged a couple US planes stopping in Shannon on their way to the Iraq. They successfully argues these planes were being used in illegal war crimes. The jury bought it, and they were acquitted of all charges.

But this defense has never successfully been done in the US due to the judge disallowing it - to the point of kicking the activists out of the court room.

Forced by an unresponsive political system to seek out a venue to act non-violently to prevent irreparable harm to the land, the watershed, the atmosphere, and future generations...
In innumerable cases, following the suggested venues of protest ..."such as filing a formal protest with the BLM, filing a civil suit, contacting elected officials, staging a rally or going to the media to spread his message" has not been able to affect the decision makers from following the desired result of moneyed interests.
Here in Maine, tens of thousands of people have gone on record against the "development" of our great Moosehead region from the notorious out-of-state corporate despoilers of natural areas... Plum Creek (who bought the land at timber prices – agreeing to abide by the limits of timber harvesting and, after incurring massive fines for clear cutting and other nefarious practices) has proved itself a bottomless influence buying wallet with no interest in Maine other than the profit of selling off nature to wealthy people who have no business living in the woods let alone the wilderness.
All of the “accepted” protest techniques had been utilized, with the result that the governmental "deciders" still chose to ignore the people.
The same techniques were also ignored in the state government and MDOT's decision to seek "development" of the last uninhabited publicly accessible island on the Eastern Seaboard. The public ran 95 to 1 against such plans.

So how is irreparable harm to be stopped when the voiceless victims have only the public majority to defend them? A public that no power broker has any interest in listening to let alone defending quality of life for...
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Live Simply So That Others May Simply Live

Don't dare disrupt the boondoggles of the super rich!

one way i'll look at a fellow human is ask this; if everyone embodied this person's basic values, what kind of world would we live in?

if all had TD's courage and convictions, all, their would be no oppressors. they herd sheep, not thinkers that act.

the only legal avenues i can postulate are the act was an excersize of free speech, not blm contracts, the former superceding the latter in terms of rights guaranteed-with this question? did he speak for many, and for the good of all?

that land is everyone's land anyway, effin blm leases it to ranchers who shoot wolves then sell the meat, fed on 'public,' lands to the public.

notrespassing

I want to respect the law, and see Constitutional rights upheld. However, all I see is lawlessness at the top with impunity. Meanwhile, citizens get thrown in jail for simply exercising speech rights in whatever form.

I think it's possible to get too enamored with the technical language and "logic" of the law. It's possible to feel satisfied with "legal knowledge" and still veer off in the wrong direction while talking about tactics, precedents, etc.

Let's face it. We all know the law does not protect Constitutional speech rights more than property and business rights. And because that's so, we're all basically slaves to capitalism as protected under the law. We "follow" the law, even while those in power ignore it or abuse it.

So, yes, the necessity defense will be disallowed. Another way of looking at it is that the courts will never allow citizens to decide the common good, or act to support it. We are not talking heroism here - just standing up for the interests of the commonwealth. The environment is the commonwealth. But this kind of stuff has no legs in a U.S. court of law.

I do not think DeChristopher stands a chance under the law. He must help the jury to see that the law and legal process itself needs correction. It's not an easy task. People are unthinking zombies, especially when in the presence of authority. We're not in the 1960s.

I would hope that the locals near the federal court (wherever it is) would turn out in massive numbers of support for DeChristopher. He needs that more than a good defense attorney. The protest must never end, and certainly not with DeChristopher's fate.

-TIA

The key statement in the article occurs at the end, in which prosecutors are quoted as saying:

"they're concerned such a defense will help turn the trial into a 'referendum on national environmental policy.'"

That is exactly the point, and the reason the fellow did what he did.

I also like the suggestion in one of the comments that it was an act of free speech, but I doubt that the average federal judge (most of whom are Republican appointees) will allow it.

They are selling drilling leases in Utah?

I never would of heard about it unless I read this article, this article would of never been written with out this arrest.

"Additionally, another appellate court ruled that 'direct' harm to the defendant must be proven, not theoretical or future harm."

That's from the same government that now claims that the mere possibility of future harm is sufficient justification for them to imprison suspects indefinitely without charges and with no recourse to a trial by jury.

From a recent article on The Raw Story:
"President Barack Obama has quietly decided to bypass Congress and allow the indefinite detention of terrorist suspects without charges."

(link: http://rawstory.com/blog/2009/09/obama-will-bypass-congress-to-detain-suspects-indefinitely)

Another preview message has come in.

Are the judges and the courts now going to become prostitutes for the super rich power elites the way so many of the politicians already have?

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Why not gather up $1.7M and buy the damn things?