The defendants of the Delta 5, pictured here, wanted the judge to instruct the jury to consider their necessity defense. That didnt happen.
The defendants of the Delta 5, pictured here, wanted the judge to instruct the jury to consider their "necessity defense." That didn't happen. Rising Tide

After three days of testimony from a climate scientist, an energy policy expert, a hazardous materials safety consultant, a doctor, and a BNSF whistleblower regarding the threats posed to communities by the transport of crude oil by rail, Snohomish County Judge Anthony Howard told defendants in the Delta 5 trial that he would not instruct the jury to consider their "necessity defense." (In essence, a legal maneuver arguing that the harm of whatever was being protested exceeds the harm caused by the civil disobedience itself.)

Previously, Judge Howard had reversed an earlier ruling that denied a motion to present the necessity defense on behalf of the five people who blocked BNSF train tracks in a September 2014 oil train protest. As a result, the defendants' lawyers were given a rare opportunity to present "necessity defense" evidence: testimony that the harm posed by business-as-usual crude oil train traffic on those tracks—including the greater context of climate change—is greater than the harm posed by their act of civil disobedience.

According to the supporters of the Delta 5, this was the first time that a necessity defense for climate disobedience had been heard in a US court.

Still, Judge Howard had not fully determined—until yesterday—whether he would give the necessity instruction to the jury. The judge noted he had been urged by the defendants' lawyers not to rule on the necessity instruction until after the jury heard expert testimony.

That testimony included the appearance of Dr. Frank James, a medical doctor who treated the family of a child killed by a Bellingham pipeline explosion in 1999. James also testified about the health effects of oil-by-rail transport, noting evidence of increased cancer risk near rail yards.

But Howard said that the defense had not met one criteria for a necessity defense instruction to the jury: they hadn't presented evidence showing that no "reasonable, legal alternatives" existed other than breaking the law.

Patrick Mazza, the Delta 5 defendant who was representing himself, argued that while citizens could seek legal ways to try and change the status quo, nothing other than direct action could achieve a result proportional to the odds they were facing. The other defendants' lawyers recalled earlier expert testimony citing the influence of the railroad and oil industries on federal regulations.

"My argument is that those legal means won't be effective and won't work if direct action doesn't supply some kind of shock to the system, to move the system away from the corporate influence under which it is right now," Mazza said.

In the end, Judge Howard didn't buy it. He did note that the defense had "rather valiantly distinguished their case." He added, too, that the defendants were "quite frankly, the kind of tireless advocates we need in this country." Still, he ruled that because of existing necessity defense precedent, he wouldn't allow the jury instruction.

Therefore, the jury was asked to disregard testimony from all of the defense's expert witnesses.

Today, as of 9 a.m., the jury was still deliberating. They heard deputy prosecutor Adam Sturdivant make a closing argument that the five defendants had knowingly trespassed on BNSF property and blocked five trains, and also heard Delta 5 defendant Abby Brockway's lawyer, Bob Goldsmith, take a final stab at convincing the jury to acquit without a necessity defense.

Goldsmith cited an earlier protest, the one this country was founded on. "Sometimes people have to take a stand," he said.

We'll update when we hear the verdict.

In case you missed it, here's part one and the final verdict of the trial.