Ken Ward’s Appeal Hearing

On Monday we had our appeal hearing in front of the Washington Court of Appeals on behalf of Valve Turner Ken Ward, who turned off a Kinder Morgan tar sands pipeline in Skagit County two years ago. We appealed the judge’s decision to deny our client the right to present evidence, testimony and argument regarding the Necessity Defense.

During a strong twenty minute hearing where attorney Lauren Regan fielded questions from a three judge panel, the court took the matter under advisement. We expect to have a ruling in two to six months.

The basis of our Appeal is that the judge abrogated (took away) the right of the jury to hear evidence and testimony on the defendant’s affirmative defense of necessity because it is a jury who must determine and apply the facts regarding his actions. Ward had a constitutional right to present the defense, and it was improper of the judge to disallow a jury of Ward’s peers to decide whether he had met his burden of proof.

Further, our appeal rests on countering the rulings that the judge made, which included that Ken did not try all lawful alternatives first, and that there needed to be more immediacy regarding the harm that Ken was trying to prevent. To this, we are arguing that WA law does not require that every possible alternative must be tried before invoking necessity and it is up to the jury to determine whether he adequately exhausted the reasonablealternatives available. We are also arguing that the additional element of immediacy is not required by Washington law as illustrated by the Washington jury instruction for the necessity defense and  is therefore an inappropriate burden to place on the defendant (and if the court rules it is appropriate, we still could have met that “immediacy” burden if permitted to provide expert testimony that the harm is already occurring—see the recent Intergovernmental Panel on Climate Change report).

If we win this appeal, it will create statewide precedent that climate defenders must be allowed to present the Necessity Defense, including evidence and testimony to the jury, if they can meet an initial pre-trial showing (sniff test) that there is some evidence for a jury to consider. For Ken Ward, a victory at the Court of Appeals will mean a third trial in front of a Skagit County jury! His first trial resulted in a hung jury, as the jury could not unanimously convict him of a crime. In his second trial, he was convicted of 1 of 2 felony charges, the jury again hung as to the sabotage charge, and he was ultimately sentenced to 240 hours of community service and no restitution to Kinder Morgan.

After our recent close call at presenting the climate necessity defense in the Minnesota valve turner case (put link to that blog), we are excited at the potential prospect of finally putting on our experts and evidence establishing that because of the current state of climate change, strategic direct action is a true necessity.  As journalist Dean Kuipers recently wrote in Wired magazine, “Necessity may be the mother of invention, but it’s also the child of desperation.”

CLDC continues to defend the Valve Turners and to push the necessity defense on behalf of all climate defenders and social change activists.  Leonard Higgins’ appeal in Montana is also ongoing. To support our work defending frontline activists around the country, donate today!