An exemplary U. of Utah economics student
Source Louis Proyect
Date 09/10/10/07:28
Legal Cost for Throwing Monkey Wrench Into the System

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.

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