Finding Arguments About Climate Change’s Urgency Compelling, Jury Renders Split Decision In Criminal Trial of Climate Activist Ken Ward
[Mt. Vernon, WA – June 7, 2017] Today a jury reached a split decision in the landmark trial of “valve turner” Ken Ward on charges of second-degree burglary and sabotage.
The charges stem from Ward’s October 2016 act of closing the emergency valve on a Kinder Morgan tar sands pipeline near Anacortes, Washington. It was part of a coordinated action in four states where five peaceful climate activists temporarily halted the flow of carbon-intensive tar sands from Canada into the US. They were charged with unusually severe felonies, punishable by decades in jail.
After Ward’s first trial in Skagit County Superior Court ended in a hung jury in February, the prosecution chose to retry the case. Today the second jury found Ward guilty of second-degree burglary, but deadlocked (for the second time) on the charge of sabotage.
Ward and his defense team will appeal the conviction. Second-degree burglary is a Class B felony carrying up to ten years in prison and $20,0000 in fines. Sentencing is scheduled for June 22.
There is no dispute about the facts in the case. Ward freely admits he closed an emergency valve on a tar sands pipeline to prevent harm to the climate, as part of a coordinated action in four states taken in solidarity with the water protectors at Standing Rock. In fact, Ward’s supporters called the company in advance to allay any safety concerns over closing the valve, Ward livestreamed his action, and waited for the police to come and arrest him.
What is disputed is whether it is just or legal to convict Ward of felony crimes for acting peacefully and responsibly to prevent greater harm to the climate. In both trials, Ward was denied the right to a “necessity defense,” which means he was barred from calling expert witnesses and submitting expert testimony on the severity and urgency of the climate emergency that prompted him to act.
However, Ward and his defense team did get enough of their argument across about trying to prevent climate harm to obtain a hung jury in the first trial, and a split decision in the second trial.
“It was illuminating to talk to the jurors after the trial,” said Ward, “because they made clear that if we had been able to offer necessity defense and give them a legal basis not to convict we would have had a hung jury for both charges, not just for sabotage. The jurors found the conversation about where we are with climate change compelling and convincing. I’m leaving this trial heartened, knowing that we are bringing these arguments into the jury system, and I look forward to arguing before a higher court that necessity defense should be allowed for citizen climate action. That will make all the difference.”
“We thank the jury for their service; they did the best they could with what the court provided them,” said Lauren C. Regan, attorney and Founder/Executive Director of the The Civil Liberties Defense Center. “We recognize their ability to judge the case was limited by the court’s denial of the necessity defense. We will appeal and we hope to try the case again.”
In pre-trial hearings in January on Ward’s request to mount a necessity defense, Judge Michael Rickert made headlines by uttering statements that seemed to indicate climate denial, saying for example, “there’s tremendous controversy over the fact whether [climate change] even exists.” That prompted criticism for questioning the existence of climate change from the bench while ruling to prevent juries from hearing evidence and testimony about it.
“Especially in a situation like this, where Mr. Ward took courageous action in the public interest, the jury must be allowed to hear both sides of the story — not just the government’s biased view of what acceptable activism looks like,” said Kelsey Skaggs, a staff attorney at the Climate Defense Project and a member of Mr. Ward’s defense team. “Even though Mr. Ward’s constitutional right to defend himself was violated — which we will address on appeal — the prosecution failed twice to convict Mr. Ward of sabotage, which is a big win against the criminalization of protest.”
Recently, Judge Daniel Boucher of Montana’s Twelfth Judicial District Court similarly denied a necessity defense to Leonard Higgins, another “valve turner” who acted simultaneously with Ward. Higgins faces charges of criminal trespass and criminal mischief (a felony), carrying up to 10 years in jail and fines of up to $50,000, for shutting the emergency valve on the Spectra Energy Express oil sands pipeline in Coal Banks Landing, Montana. Like Ward, Higgins notified the company in advance, documented his action and waited for law enforcement. As in Ward’s case, the judge also ruled testimony about climate change and civil disobedience “irrelevant” in Higgins’ case. Higgins trial is currently scheduled to start July 18.
But the necessity defense has been deemed relevant and used successfully by climate activists before, and some legal scholars say the case for applying it to climate action is getting stronger all the time as climate change becomes more obvious and scientific evidence mounts, while US government doubles down on subsidizing and deregulating the fossil fuel industry, defunding climate programs and research, and withdrawing from the Paris climate agreement. Increasingly, citizen climate action looks like the only effective kind, and more and more “necessary.”
Four more climate activists who face charges for taking part in a related “valve turner” action in Minnesota--Annette Klapstein, Emily Johnston, Ben Joldersma, and documentarian Steve Liptay--are also pursuing a necessity defense. Their pre-trial hearing is scheduled for August 15 in Clearwater County District Court in Bagley, Minnesota.
"The actions of Ken and many others aren't some aberration of disobedience," wrote Anthony Rogers-Wright, US coordinator of The Leap, "but a concerted strategy at this late hour to save what chance we have left for a livable future."
NOTE TO EDITORS AND PRODUCERS – Ken Ward his legal team and other “valve turner” defendants and sources are available for interviews on request.. For updates on the trials go to https://www.facebook.com/ClimateDirectAction/ To request interviews, court documents or further media information, contact Stephen Kent, [email protected], 914-589-5988.