Judge Rejects Necessity Defense, Imposes Stiff Sentence on Cove Point Protestors

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Cove Point protestors outside the Calvert County Courthouse.

By Margaret Flowers, We Are Cove Point

Prince Frederick, MD – On Monday, February 23, twenty Cove Point Protectors went to trial in the Calvert County District Court for actions last November and December to raise awareness and build resistance to a new gas refinery, liquefaction train, power plant and export terminal being built by Dominion Resources in the neighborhood of Cove Point in Southern Maryland. The Cove Point Protectors, as a group, were charged with 20 counts of trespass, 19 counts of failure to obey a lawful order and 2 counts of disorderly conduct.

The gas refinery and export project, which will emit carcinogens and other toxins into the community and present a risk of chemical spill, fire and explosion, are the first to be placed in a densely-populated area. In fact, Dominion Resources lied during the permitting process by leaving out 90% of the more than 44,000 local people in its application to the Federal Energy Regulatory Commission (FERC). That permit is being challenged by a number of groups, which have asked for a halt to construction until the permit is reviewed, but construction on the project continues.

Local community groups have been working to get comprehensive environmental impact and safety studies since they learned about the project in late 2013, but every effort so far has been ignored. Dominion Resources has successfully gagged county commissioners and bought good will from community groups, politicians, the sheriffs and police. That is why many felt compelled to take nonviolent direct action last fall.

Defendants on a phone call with Tim DeChristopher.The group put forward a necessity defense, which is a legal defense recognized in Maryland but not previously successful. The key elements of the necessity defense are the actions were preventing a greater harm with a lesser offense because there are no other alternative actions. Before going to court, defendants met by telephone with climate justice activist Tim DeChristopher for advice on the necessity defense and for words of inspiration.

Tracey Eno, co-founder of Calvert Citizens for a healthy community and a tireless community organizer, was prepared to testify that she and others in the community had tried everything including testifying before the Board of County Commissioners nineteen times, testifying in hearings, gathering petition signatures, and meeting with or writing to elected officials. Margaret Flowers was prepared to testify about the Dominion project’s extreme dangers to health and safety.

However, their testimony was cut short. Judge Michelle Saunders rejected the necessity defense immediately and refused to hear any argument for it. Despite that, individual members of the group brought forward elements in their statements. As the hours wore on, it was clear that the people present in the court room, including the judge and police, were moved by the defendant’s words and strong concern for the local community and the future livability of the planet.

20150223_100645The defendants represented a wide array of people of all ages and backgrounds who are concerned about the climate crisis, the need to end the fossil fuel era and move to renewable energy sources and stopping oil and gas corporations from turning communities into sacrifice zones for profit. Berenice Tompkins, a current college student, told Judge Saunders that she had been advised not to have children because of the climate crisis. Berenice said that her actions are done out of a deep love for the Earth. Steve Norris, a great grandfather who teaches about nonviolence told the court that he doesn’t believe the world will be a very habitable place when his great grandchildren are his age and that is why he will continue fighting for their future.

The judge heard from teacher Greg Yost that he feels a responsibility to his students to do all he can to stop the drivers of the climate crisis. As a teacher he understands the science which gives us only three years to stop increasing carbon emissions. And retired special education teacher Clarke Herbert pointed to the absence of democracy as a key reason why we are facing abuses by corporations like Dominion Resources and others who use their money to bully communities.

Retired nurse turned farmer Debbie Wagner said that her love for her children, grandchildren and community extends to her love for others’ children and grandchildren and other communities and that is why she feels compelled to do all that she can to protect the planet.

Ellen Taylor, who worked as a policy analyst for the federal government, stated that she understood risks and described Dominion’s project as a terrible threat to the health and safety of the people of Cove Point. She went on to say that communities up and down the East Coast will be harmed because of projects related to Dominion’s refinery and export terminal.

Betsy Conover lives in Pennsylvania where she sees families and farmers whose lives are destroyed by fracking. They can’t drink their water, there are many health problems caused by the chemicals used in fracking and farmland and farm animals are being poisoned. Dominion’s project will drive more fracking in PA. Cabot Oil and Gas, a big fracker in PA, has a twenty year contract to export gas through Dominion’s terminal.

Lee Stewart lives in Virginia close to a compressor station that is being expanded as part of Dominion’s project in Lusby. He knows that expansion means more pollutants and Greenhouse Gases being emitted in his town.

Perhaps Mackenzie McDonald Wilkins, who walked across the country last year with some of the other defendants in the Great March for Climate Justice and has met people in many front line communities, summed up the situation:

Dominion’s project in Calvert County highlights many of the greatest issues that humanity faces today: a total lack of democracy, the power of money, the exploitation of working people, and a complete disregard for the health of people and our planet. By denying us use of the necessity defense this court perpetuates and validates the power of corporate profit over people and planet.

Like a weed, Dominion has crept into all corners of the community’s political life, offering gifts here and there in exchange for loyalty and souring local sovereignty at the expense of lives. Community officials are now Dominion’s puppets and they wield a dangerous military police force to protect Dominion, claiming that this is the same as protecting Cove Point. But the true villain hides in the shadows behind all community institutions including this court, alienating and criminalizing anyone who dares expose its wicked intentions.

Dr. Flowers, who represented herself pro se, used her sentencing statement to appeal to Judge Saunders to bring justice to the people of Southern Maryland. When the judge said that her courtroom was not the forum for this issue, Dr. Flowers politely disagreed. She said, “You are a leader in this community. The necessity defense is a legitimate defense. If you had allowed us to go ahead to present the necessity defense, we would have brought forth experts who could testify about the dangers that Dominion’s project is bringing here. It is like placing a chemical spill and a bomb in a neighborhood where there are children and families. We could have brought these dangers to light before the government in a formal way that has been denied to the residents of Lusby. We could finally expose the truth and have justice. You have the power to make that happen. As a leader, you have a responsibility to this community.”

Defendants ready to head over to the court house. Photo by Kevin Zeese,Many words were spoken from the heart that day in court and our belief is that this is something the court seldom sees. Defendants spoke of their love for humankind and the planet. These are words that are probably seldom heard in that setting. The atmosphere in the court room was very strict and intimidating. The Sheriff’s SWAT team sat in the rear of the room or stood at the exit. The bailiff kept a close watch on everyone and frequently scolded defendants who whispered or showed signs of affection for each other. At one point during a recess, a small group of defendants sang “We Shall Not Be Moved” and they were expelled from the room. It took some convincing to permit their return.

As one after another of the defendants spoke, Judge Saunders, who initially looked at her papers or computer during sentencing statements, started to look at the defendants and listen instead. Even police officers who sat behind the defendants nodded slightly as they spoke.

In the end, the defendants were found guilty on less than half the charges, but everyone was found guilty of one charge. The sentencing results were a disappointment. All defendants, except the few that accepted a stet agreement, were given a twenty day suspended sentence, three years of probation and a $157 fine. This is an outrageously large sentence for trespass. The three year probation just happens to be the amount of time that it will take Dominion to complete its project.

About half of the defendants were prepared to serve time in jail rather than go on probation or pay a fine. This option was given to a similar defendant a few days before, but the judge denied it to us despite requests. One defendant, Steve Norris, was also sentenced to serve five days in jail because of his previous record of minor trespass. Steve is currently locked up in the Calvert County detention center.

Here is a video of Steve Norris prior to the hearing made by Kelsey Erickson, it is unedited:

It is clear that Calvert County is trying to suppress peaceful protest and opposition to Dominion’s dangerous project, but it will not succeed. The defendants understand the risks to the community and to the planet of expanding fossil fuel infrastructure. Each understands that this struggle is greater than any one of us. And we will continue.

After the hearings, we gathered outside to debrief. Then we posed on the steps outside the court house for photos. We chanted: “We’ll be back” and “Who is Cove Point? We are Cove Point.”

We ask that you recognize that you are also Cove Point wherever you live. This struggle affects all of us. Pipelines and compressor stations that will harm communities are being built up and down the East coast. More fracking will take place throughout the Marcellus and Utica shales. Millions of tons of Greenhouse Gases will be spewed into the atmosphere each year. If Dominion’s project is allowed to go forward in a residential community, it will set a dangerous precedent and other similar projects will be built in other vulnerable communities.

We have to stop Dominion’s refinery and export plant. And to do that, we need your help. Mostly we need you. You can let us know how you can help out by clicking here to fill out the volunteer form. And you can make a donation to support our campaign by clicking here. Funds are very important to pay our organizer, cover materials and cover court expenses for those who need help.

Jimmy Betts said it well and simply, “There will be no public peace as long as corporations hold dominion over our community rights.”

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