A six-person Snohomish County jury has found the Delta 5 defendants guilty of criminal trespass on BNSF Railway property, but not guilty of obstructing or delaying a train.
Supporters of the Delta 5—the five people who staged an oil train protest in the fall of 2014 by blocking train tracks—say that today's verdict reflects the tough decisions the jury faced. The jury had been presented with all the evidence for a "necessity defense," a landmark argument for a civil disobedience trial. (Essentially, a "necessity defense" is an argument that the harm of whatever was being protested exceeds the harm caused by the civil disobedience itself.) But right before closing arguments, Judge Anthony E. Howard denied the defense's motion to let the jury consider that defense.
Had the jury been able to consider the "necessity defense," they would have had to weigh whether the harm of blocking the train tracks outweighed the health and safety risks from crude oil trains and climate change.
Judge Howard sentenced the five defendants—Abby Brockway, Michael Lapointe, Patrick Mazza, Jackie Minchew, and Liz Spoerri—to two years of probation, with 89 days of suspended jail time if they violate that probation. In other words, zero jail time. (Unless.)
Judge Howard added that while he was beholden to precedents established by higher courts, even "this guy in a black robe" had learned something from the case.
After the verdict was read, three jurors came outside and talked to the defendants. Some exchanged hugs. One, 61-year-old truck driver Joe Lundheim, wiped away tears.
"I'm actually really pleased with what you delivered to us, because we have options now and there's more we can do with this, and this was probably the best verdict that could have been returned to us," Brockway told Lundheim and Sue McGowan, 49, another juror.
"It was hard to take the emotion out of it," McGowan said. "I mean, for myself, I didn't want to convict you of anything, but I had to uphold the law. Emotionally I was like, 'No, they're good people, I don't want to deliver guilty!'"
"That was huge in itself, that you guys were able to bring this matter to a jury trial," Lundheim told MJ McCallum, the lawyer representing protester Jackie Minchew.
"Eventually we will have achieved what we wanted to achieve with the climate change problem, but the problem is that we don't have the time," Michael LaPointe, one of the Delta 5, said. "By the time we've achieved it, at this pace, we will have all died."
"That's the point about legal methods," Bridge Joyce, protester Liz Spoerri's lawyer, said. "You guys were trying to draw attention to that."
"There's this very narrow window of time when traffic is going to exponentially increase on this toxic product coming through our neighborhoods to make a buck—while a buck is able to be made—before it closes," Lundheim, one of the jurors, said.
He continued: "It's not going to be available forever, this whole fossil fuel thing. China's not going to want coal forever, they want to get off it as soon as they can. And people know that. But there's this, 'Quick, let's make money here, we'll push it through Washington.' And I know this because I've been listening to this stuff all week long, so thank you for that."
"We don't want to be the corridor," McGowan, his fellow juror, added.
They discussed other new climate developments before LaPointe, one of the Delta 5 defendants, had a thought about the jurors: "May I say welcome to the movement?"