[Marxism] An exemplary U. of Utah economics student

Louis Proyect lnp3 at panix.com
Sat Oct 10 07:29:23 MDT 2009


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.






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