Friday, September 12, 2014

Judge Cleared ‘Necessity’ Defense for Use in Climate Trial for the First Time

A Mass. judge dropped criminal and conspiracy charges against environmental activist Jay O'Hara (left) and Ken Ward (right). Photo taken at a press conference after the trial. (Credit: Kate Toomey) Click to enlarge.
Even before a prosecutor in Massachusetts dropped criminal and conspiracy charges against climate activists for blocking a coal shipment with a lobster boat, the judge in the case broke new ground in favor of the foes of fossil fuels.  For the first time in the U.S. climate fight, he cleared the way to use "necessity" as a defense in the courtroom.

State District Judge Joseph Macy in Fall River, Massachusetts, found the defendants could call expert witnesses to justify the violation of the law in order to protect citizens from the impacts of global warming, and to argue they had no legal alternative.  His findings carry legal implications for future acts of civil disobedience, climate activists and lawyers say, and may even have had a direct impact on the outcome of this case.

The litigation drew national attention earlier this week when C. Samuel Sutter, the district attorney in Bristol County, downgraded charges against two climate activists who blocked a 40,000-ton shipment of coal in 2013 with the lobster boat.  He said he did so because climate change "is one of the gravest crises our planet has ever faced."

Environmentalists hailed him as a hero, but according to Matt Pawa, the lawyer for the defendants, Sutter "caved on Monday because he lost on Friday" when the judge said he would allow the necessity defense.
"The prosecution—the state—didn't want to be in the awkward position of having to cross-examine our experts on global warming and downplay the impacts of the Brayton Point Power Plant and 40,000 tons of coal,” Pawa said.  "It put them in a real bind."

Sutter said he acted from other motives.  In an interview with InsideClimate News, he said he wasn't sure which witnesses the judge would have allowed for the necessity defense, how long they would have been permitted to testify and whether the judge would have instructed members of the jury that they could find the defendants not guilty by way of necessity.  Those uncertainties helped him decide to seek a resolution before the trial could open.

In addition, Sutter said, "It would have been a very awkward and difficult situation to be arguing for something legally that was going to block something that I believe deserves attention politically." 

Judge Cleared ‘Necessity’ Defense for Use in Climate Trial for the First Time

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