Bogus BLM bid case: Feds worry jury might buy 'monkey-wrencher' theme

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Prosecutors want to bar Tim DeChristopher from arguing in his upcoming criminal trial that he placed bogus bids on oil and gas leases to combat the climate crisis.

The reason, legal experts say, is the fear the some jurors may buy his argument.

In a 27-page motion filed this week in Salt Lake City's federal court, U.S. Attorney for Utah Brett Tolman offers several examples of previous rulings against such a defense in civil-disobedience and political-protest trials.

"The only purpose the evidence would serve," the motion states, "is to encourage improper jury nullification."

That means a jury could acquit DeChristopher regardless of his admission that he fouled up the lease sale on purpose.

That Tolman and assistant U.S. attorneys John Huber and Scott Romney are trying to toss out the strategy shows they are nervous, Pat Shea, one of DeChristopher's attorneys, said Friday.

The motion only strengthens the defense's desire to take the case to a jury. "It's like Br'er Rabbit: 'Don't throw me in that briar patch,' " Shea said.

Shea and Ron Yengich, DeChristopher's other attorney, told the U.S. Attorney's Office they would base their arguments on a defense commonly known as "necessity" or "choice of evils."

DeChristopher always has said that placard-waving protests are not enough and that he took his actions to help save the environment and future generations. Now he faces up to 10 years in prison and $750,000 in fines.

The prosecutors in the motion countered that DeChristopher wouldn't be able to satisfy four legal requirements to prove the defense: He was faced with a choice of evils and chose the lesser; he acted to prevent imminent harm; he reasonably expected a direct relationship between his action and the harm he wished to avert; and he had no legal alternatives to violating the law.

Yet the prosecutors dwell on the possibility of a jury sympathetic to DeChristopher's arguments that he indeed experienced or felt all of the above. Allowing discussion on global warming and climate justice "will be to improperly inflame or confuse the jury," the motion states. "Accordingly, at trial, defense counsel should focus the jury's attention on the facts and not try to confuse it with appeals based on emotion, sympathy or other similar considerations."

That's what the defense plans, Shea said. "We want to demonstrate global warming is a reality that creates certain necessities, including civil disobedience," he said. "Part of it is convincing the judge that [climate change] is an imminent threat."

University of Utah criminal law professor Paul Cassell agreed that the prosecutors' motion "shows they are worried about [nullification]," even though a jury rebellion is never legally proper in the eyes of the law.

"I can understand the defense argument but it's far-fetched," said Cassell, who served as a federal judge in Utah from July 2002 to November 2007. Still, "sometimes the jury thinks the law is unduly harsh," he said. "They have the raw power to nullify charges."

If that were to happen, DeChristopher would be off the hook and never again could be charged for his protest action. On the other hand, if U.S. District Judge Dee Benson grants the prosecutors' motion, Cassell said, "that's pretty much the whole ballgame."

Shea said the hope is that a jury of DeChristopher's peers would agree with him. Cassell, however, who used the case a few weeks ago in his first-year criminal-law course at the U., said "the overwhelming majority of the class concluded the defense would not fly."

"Of course," he added, "we hadn't had the opportunity to hear from his defense attorneys."