Court Update: February 20th Activist Hearing

by Carol Kindt

Court Date: February 20, 2018

The municipal court hearing on February 20, 2018 for the four people arrested in December 2017, Stephen Way, Carlo Voli, Sarah Long, and Juan Delgado began in confusion.

Steve Way’s attorney Blake Kremer was under the impression that this day was an evidentiary hearing in which expert witnesses would be allowed to proffer testimony in support of a defense of necessity. Professor Tom Hastings had traveled from Portland, Oregon, to speak as an expert on civil disobedience. Steve Storms from Tacoma was to speak in his capacity as a chemical engineer. Val Peaphon from Redefine Tacoma was to speak as a union representative. Tarika Powell, an administrative attorney and researcher at Sightline Institute, traveled from Seattle to speak specifically about the lack of process the City of Tacoma provided to the residents of Tacoma and the Puyallup Tribe.

Municipal Court judge Henke didn’t think this issue was on the calendar. After over an hour hearing other municipal court cases, she was at first predisposed to deny any of the expert witnesses to testify.

The Case for the Necessity Defense

Attorney Kremer, in an impassioned plea, asked the court to consider that all four defendants have an inherent right to ask for witnesses, and that the burden to consider a necessity defense is extremely low, being “some” evidence and not a preponderance (more likely than not). He further stated that even the United States Supreme Court noted in two separate cases that the current state of the judicial system has relied on pleas and bargains rather than trials and justice. The court eventually relented to allow one witness, Tarika Powell, to speak for 15 minutes.

That 15 minutes turned into 45 minutes, in which Ms. Powell once again demonstrated her enormous range of knowledge and expertise on both the facets of the LNG refinery being constructed in Tacoma, and about the basic lack of notice and uncertain status of the EIS prepared for the City of Tacoma, as lead SEPA agency for the project. She reiterated the facts she presented two weeks ago in a talk at the University of Puget Sound, in which she stated unequivocally that the EIS prepared for the City of Tacoma was the “shoddiest” she had ever read, and she had read numerous environmental impact statements throughout several states.

She further stated that she at first believed the City of Tacoma to be both unqualified and negligent. After more than a year of being rebuffed and told by the City that they did not understand her questions regarding the status of the EIS, she now believes the City to have intentionally misled the public as to the status of the EIS, which has never been given a final determination, thus leaving it in limbo and unable to be appealed in a legislative proceeding. She again stated that this intentional misstatement of fact to the public discouraged them from pursuing the matter in a legislative procedure, which also prohibited members of the public from pursuing a legal remedy. The City of Tacoma thus prohibited its constituents from pursuing any remedy to the illegal construction of the LNG refinery.

The City’s attorney, the prosecuting attorney, attempted to beguile Ms. Powell on the witness stand and misstated her statements, but she was not ruffled in the least. He also said that the construction of the LNG facility had been suspended, which is in fact not true. He acknowledged his faux pas when it became apparent that not only Ms. Powell but most of the court supporters knew more about its status than he did.

The Determination

After hearing Ms. Powell’s testimony, the judge basically determined that although Tarika Powell’s struggle to get a straight answer from the City of Tacoma had been onerous, all remedies had not been exhausted, and so she denied the necessity defense. She stressed that the charges against the two defendants Stephen Way and Carlo Voli were misdemeanor trespass and obstruction of justice, and that was what she would hear. She made clear than the underlying merits of the arguments for a legal defense of necessity were outside the scope of the charges, and the court.
As of February 20, 2018, Sarah Long and Juan Delgado have a trial date set for March 19, 2018, with a readiness motion on March 8, at 1:30 p.m. without the presence of the defendants being mandated.

Next Court Appearances

Steve Way and Carlo Voli, whose arrest date of December 11, 2017, made their “speedy trial” requirement more timely, had their readiness hearing with Motions In Limine set for March 6, 2018, at 1:30 p.m., and a trial date of March 13, 2018. Stay tuned to 350 Tacoma’s Facebook page for further updates, as court dates and details are subject to change.

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