Activist's 'necessity' defense may get the boot

Published: Friday, Sept. 25 2009 12:00 a.m. MDT

A federal judge is expected to hear arguments Friday detailing why environmental activist Timothy DeChristopher should be allowed or prohibited from presenting evidence he acted out of "necessity" when he deliberately bid on and won oil and gas leases he couldn't pay for as part of a protest.

The December disruption of the Bureau of Land Management auction in Salt Lake City led to an indictment on two criminal charges against DeChristopher — violation of the federal oil and gas leasing reform act and providing a false statement.

DeChristopher, a University of Utah student, has publicly said he felt he had no other choice but to disrupt the auction by bidding on and winning 14 parcels of land for $1.7 million, although he had no intention of paying for them. Citing environmental damage and impact on climate change, DeChristopher opposed offering the parcels up at auction, tying up the parcels to spoil the process.

In briefs filed in advance of Friday's 11 a.m. motion hearing before U.S. District Judge Dee Benson, prosecutors argue that courts have uniformly rejected allowing a necessity defense to come before a jury when criminal prosecution arises out of anti-government protests.

Pointing to a 10th Circuit Court of Appeals ruling, the prosecution said such a defense is allowed only when personal danger is at issue and no options for other action are available.

"A bona fide necessity defense is one that would justify a criminal act committed to avert a greater harm, such as a prisoner may escape from a burning prison; a person lost in the woods could steal food from a cabin to survive; a ship could violate an embargo to enter a forbidden port during a violent storm," according to court documents.

The prosecution noted that DeChristopher did not pursue other actions to halt the process, 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.

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

In urging the court to allow DeChristopher to raise the necessity defense, his attorneys say the government is pre-emptively forcing him to relinquish a constitutional right to defend himself and is thwarting the jury's role as a "resolver of factual issues" or as the "evaluator of intent."

His attorneys added that by asking them to explain why a necessity defense is appropriate, the prosecution is asking them to give up their defense strategy. Any detailed response should be under seal, they added.

Prosecutors counter that while DeChristopher's motivation may be based on issues important for public debate, they're concerned such a defense will help turn the trial into a "referendum on national environmental policy."

e-mail: amyjoi@desnews.com

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