Quaker observer to the Delta Five Trial

This  is a picture of my friend Abby up in the tripod with my friend Patrick chained to the front leg, and my colleague Liz at the back left next to Jackie and to the right is Mike on Sept 2. 2014.  This week on most days of the weeks I joined about a 100 other supporters in attending the trial of the "Delta 5".  (Delta for the train yard their action took place in, and the scientific word for change.)   You see in my state the fossil fuel industry is trying to put record amounts of coal, oil and gas through our state on trains and pipelines in a desperate effort to get it to port.  The "carbon corridor" is opposed by the activist community because it would bring several times the amount of carbon to market than the long opposed and now dead XL pipeline would have thus posing a deadly climate threat.  Therefore, my friends constructed this tripod and sat in it for 8 hours blocking an exploding oil train.   We call them exploding oil trains because since they started in 2010 traveling with the more explosive crude Bakken shale (not the regular oil that use to ship) there have been regular derailments and explosions of these trains.  The most disturbing was the fireball that became the small town of Lac Megantic in Canada that incinerated 47 souls almost immediately and took out the downtown center of the town.  At least 3 of these trains roll through downtown Seattle under our city core everyday threatening to make it its own 911 catastrophe if one ever goes up.

When I first saw this photo it was small enough I could not see Abby's face, but the message of the sign so characteristically reaching out to the workers while opposing the trains, and smiling face and energy made me think "oh that person reminds me of Abby."  Hours later I was to realize why...because it was Abby.  So this week was their trial.

Last week they had submitted a brief asking to be able to use the defense of necessity.  The judge first said No in a 25 page brief.   But they asked him to reconsider.  Lawyers said this would never happen that judges don't reverse themselves.  After 20 minutes in his chambers the judge came out and said:  "I have recently in a talk said Judges need to use more humility.  I am going to allow necessity".   Necessity is an ancient defense that defendants in civil disobedience trials often try to use but are rarely granted.  It basically says:  It was necessary to break the law to prevent a greater harm."  This was a historic trial because it was the first time in the US that the necessity defense was allowed for a climate case.

The first day was spent on jury selection and opening statements.  I was disturbed as I always am by the farce of a "jury of your peers" since both the prosecutor and the defense were allowed to ask them questions "to get to know them" that included questions about their beliefs about protests, etc.  These values based questions quickly identified the left from the right and then out of a jury pool of 60 through a fixed number of exclusions it was widowed down to 6 jurors.

On the second day of the trial the prosecution speed through it case only calling half the witnesses they had said they would - primarily police and BNSF workers who identified the defendants as present on the tracks.  Then 4 of the defendants gave powerful opening statements explaining why they had acted as they had.  Unlike other cases I have seen for civil disobedience where the defendants are not allowed to say why they did any of the things they did because it is deemed not relevant, because of the necessity defense they were allowed to explain themselves.

The third day, possibly the most powerful 3 expert witnesses testified: Eric DePlace from Siteline explaining the whole carbon corridor situation, Richard Gammon a retired climatologist from UW who talked about just how urgent and dire the situation of climate change is, and then Abby who had not spoken the day before spoke.   Abby, so at home on top an 18 foot metal tripod talking by phone to reporters...suffered panic attacks while on the stand.  It was painful at times to watch her struggle to get out what she wanted to say, and yet still she managed to tell them of the years of intense activism she had done to try to stop climate change, relationships she had forged with rail workers and even show a letter she had received from Barrack Obama answering one from her.  She told of the profound impact it had on her to learn of the whistle blower who testified the next day and how when a train derailed (thankfully not leaking or blowing up) 1 mile from her daughter's school (thus in the blast zone) she knew it was the last straw for her.  The final expert was Fred Millar, a rail safety expert who spoke powerfully about how unsafe these trains are and how if they burn all the fire fighters can do is get out of the way.

On the 4th day Mike Elliot a former BNSF employee told about being fired for checking the breaks of his train. (the Lac Megantic explosion took place because the breaks failed and the train, unmanned moved forward till it derailed and exploded.)  Then Dr. Frank James testified about the health impacts from the trains - how 1 to 2% of the oil does not make it from its original location to its destination because the train leaks all along the way and how carcinogenic the oil is - studies linking it to cancer.  The case had been laid out so powerfully that one began to wonder how the jury could possibly find them guilty.   But there were several twists ahead.

After lunch the judge explained to everyone's surprise that he was not going to allow the necessity defense.   He explained there were 4 legs - the first 3 he felt were met: 1) that there was a threat greater than the threats caused by breaking the law 2) that you were not the cause of the threat  3) that the threat was a real and compelling one.  But the 4th one he said was not met was that you had exhausted all possible legal remedies.   This one aggravates me because while you could again call 911 while a building was burning rather than break in to get someone...there is not time.   We are in just such a burning building where there is not time for the slow and tortured path of legislative change.

The mood of the supporters in the court room was somber indeed as the judge read a very narrow set of instructions to the jury, telling them they could consider none of the expert witnesses and essentially eviscerating their defense.  Defining the two charges against them of trespass and obstructing a train.  Telling them they could not act out of emotion, but that they needed to put all emotion aside (Ahhh that old Decartian frame which has so bent and destroyed our world - that mind and body, that heart and mind are separate.) The prosecutor basically said in his closing you can do nothing but find them guilty, they all admitted they trespassed and reading again from the narrow and confining jury instructions.   However, the defense attorney, Peter Goldstein was very skillful in opening up the idea that if the founding fathers had not broken the rules of Britain we would not have a free US, that there are times for dissent and that no one would have said to Mr. Jefferson on the stand "why did you not petition the parliament more."   He then also pointed doubt on to the idea that the trains were obstructed and to the idea that their intent was not to break the law but to use free speech.   The jurors later told us this gave them the toe hold they were desperately looking for to set the protesters free of at least that charge.  The prosecutor again repeated that they had no choice, but to convict before they went to chose a foreperson before ending for the day.

Today the jury took about 90 minutes.   I was quite surprised to hear the verdict read out of not guilty on the charge of obstructing the train and guilty of trespass for all 5.   They proceed to sentencing after the jury was relieved of duty and after the prosecutor said what he was asking for there was a break so the defendants could confer with their lawyers.   But then the most magical thing of all happened 3 of the jurors came in the hall to talk to the defendants and insisted on staying for the sentencing to see what would happen to the defendants that they had come to care about.   They told us how they had not wanted to find them guilty of anything and felt they were good people trying to act to protect everyone.  They said how emotional it was for them and how hard it was to put aside their emotions.  They hugged the defendants (see below) and this amazing bit of dialogue is captured and posted on 350Seattle.org's web site under the date of 1/15/16.  (story continue below)

For me what happened in the hall was so magical as to take away the sting of the judge giving the sentence the prosecutor asked for 90 days suspended for two years of probation, plus fines.  I have to say that these 5 defendants while not Quaker, are gentle and loving people who conducted themselves in such a manner and required the supporters to treat everyone in the whole court house with nothing but respect and kindness.   The judge, unlike all previous judges I have encountered also treated everyone in the courthouse with kindness and respect.   Thus the environment of  the entire trial was unlike any CD trial I have ever been to.  Even the judge spoke of learning from the defendants and respecting that they were acting because political solutions were coming to slow.  He however still felt he had to prevent "further crime" by putting them on a long probation.

We Quakers talk of speaking to that of God in others and the power of that to transform the world "let us see what love can do".   This for me was a week of witnessing exactly that.  The response of the jurors (including to promise to become active against climate change). was for me a very powerful example of Love and Truth transforming hearts even against the oppressive power of the state.