Judge Bars Use of Necessity Defense
While Judge Wesley denied the women the right to argue a necessity defense that they had not formally asked for, he allowed them to testify expansively, between objections, so that the jury of four men and eight women ended up hearing testimony that partly supported a necessity defense without actually clarifying it directly. In essence the necessity defense involves the admission of a crime, but argues that the crime was necessary to avoid a greater crime or a greater harm.
Perhaps the best-known use of "necessity" in Vermont is the 1984 case of the "Winooski 44," in which opponents of arms sales to the Nicaraguan contras staged a three-day sit-in that obstructed Republican Senator Robert Stafford's office. Twenty-six people were arrested on trespass charges in March and at their November trial they presented a necessity defense, complete with expert witnesses including historian Howard Zind and former U.U. Attorney General Ramsey Clark. The jury acquitted all 26 defendants and the state did not appeal.
In the Winooski 44 case, the trespass at the Senator's office was justified by defendants as making it more difficult for him to support the Reagan Administration's covert and illegal war in Nicaragua. By comparison, the Shut It Down Six argued that they were trespassing in order protect themselves and their neighbors downstream, and sometimes downwind, from Vermont Yankee which continues to generate lethal radioactive waste as long as it remains open.
Judge Wesley, in ruling against a necessity defense, cited a 1979 Vermont Supreme Court case, State of Vermont v. John Warshow et al., which stemmed from an earlier protest at Vermont Yankee. That case, apparently wrongly decided, comprises three distinct opinions from the court's five justices, with the majority upholding the trial court's denial of the necessity defense primarily because the defendants had not shown any example of an "imminent danger classified as an emergency sufficient to justify criminal activity." But Justice Frederick Billings, in dissent, wrote that defendants had warned that re-starting Vermont Yankee would lead to an immediate meltdown. Someone got it wrong.
Any case with this great a discrepancy in perceived facts generally goes to a jury. As Chief Justice Paul Reiber wrote in a more recent dissent in a drug case,
Ultimately, this is a case in which the necessity defense should be heard by a jury. Indeed, it is a case where defendant's actions cannot be explained in any way other than through a presentation of the necessity defense".
Ascertaining the "ultimate truth or falsity" of defendant's necessity defense is "the principal mission of the jury," and the trial court should have squarely presented the defense to the jury so that they could "confront it, consider it, and resolve its truth or falsity by their verdict." State v. Brisson, 119 Vt. 48, 53, 117 A.2d 255, 257-58 (1955)
With a Full Courtroom, the Trial Had an Unusual Texture
It is not clear that the Shut It Down Six could have met the test for a necessity defense, had they had to address it formally. But they didn't request it, though they mentioned it and referred to Warshow, and the judge denied it, while still allowing much of their testimony, so the jury still heard enough evidence to consider it, although the judge instructed them not to. Regardless of whatever legal confusion there may have been, as one observor put it, "the whole atmosphere in the court room -- at least until the closing arguments and sentencing -- was of mutual respect and kindness; there was a good deal of humor as well."
During the trial, Frances Crowe, a 93-year-old Quaker from Northampton, started to discuss the inherent danger of the crowded spent fuel pools at Vermont Yankee. Prosecutor Brown objected and Judge Wesley ordered her to stop. One observer noticed what she thought was a pattern, that the judge would allow no discussion of fuel rods, tornados, or Fukushima.
At one point, Harriet Nestel, 73, of Athol, commented about Vermont's efforts to control the behavior of the plant's owner, Entergy Corporation of Louisiana: "They are operating illegally. They are the trespassers, and we are the enforcers of the state's will." She could not make the further argument that her crime of trespassing was a lesser harm than the continued illegal operation of Vermont Yankee.
At another point, reinforcing his ruling against any necessity defense, Judge Wesley said, "This trial is not about the legality of Vermont Yankee's continued operation."
Although the women said their activism had intensified since the melt-downs at the Fukushima plant in Japan in March 2011, they couldn't present evidence that those four failed reactors in Japan have the same generic General Electric design as Vermont Yankee's reactor.
Nor could the women introduce evidence that Vermont Yankee, by virtue of its riverside site, is one of 34 American plants that the Nuclear Regulatory Commission (NRC) specifically considers at risk of flooding due to upstream dam failure. The NRC suppressed a report with those findings until a whistleblower recently released them, indicating that Vermont Yankee is a potential American Fukushima. According to NRC risk engineers, although the likelihood of an upstream dam failure may be low, if there is a dam failure, then the likelihood of a melt-down at the downstream nuclear plant is close to certainty.