NOT SO GREEN  |  Delta 5, Day 1 - PM

By Steven Keeler | Sep 13, 2016
Source: NSG


The following document is Copyright 2016 by Not So Green


02:19:00 PM  Lunch break

03:25:40 PM  Court resumes session

Before the jury returns

Pro se defendant comments that some sort of protest took place outside the courtroom, in listening range of the jury pool, during the lunch break.  Pro se says that the prosecution made a comment that was, by inference, prejudicial and that the prosecution not make any such comments ( in the future ? ).  The court responds that this was not what was said, as recalled by memory,  Prosecution says his only comment was about length of lunch break, and no such prejudicial statements would be made in the future.

Jury returns

Prosecution presents their opening Statement

Opening Statement begins with a generalized presentation of the events of the day of protest.  The presentation describes the protest  tripod  the people associated with the tripod, other protestors present and the signage used.  The prosecution will call Everett police officers who arrived at the rail yard to give testimony.  The prosecution states that for eight hours the defendants blocked a rail line.  This blockage halted BNSF operations, operations of all train traffic.  Monetary damage to the railroad was estimated at $ 10,000 dollars.  Prosecutor states that  the defendants were willing to put their life on the line, for this cause .  As the tripod elevated one of the protestors to  20 feet , security and police were not sure how to respond.  Everett fire department arrived at the protest site.  Protestors refused requests to come down, come off the tripod, and to leave.  Fire responders used cutting devices for the chains and a elevated platform to carefully remove the individuals.  The elevated protestor attempted to defeat her removal from the tripod.  All defendants were taken into custody and booked.  All are charged with two crimes :  Count 1, obstructing or delaying a train -  Count 2,  criminal trespass in the second degree.  Testimony will be given by several ... at this point in time the current file of audio ends, the next audio file seems to pick up as defense is offering their opening Statement - thus any remaining comment by the prosecution in opening, is not available from the audio record.

Defense presents their opening Statement

( audio begins in mid sentence, of unidentified speaker, later revealed to be a Mr. Joyce )  .... tipping points, beyond which  we  will suffer devastating rise in global temperature.  Such tipping point is key to an understanding of the urgency felt by the defendants in this case, to do something to bring attention to this ( these ) issue(s).  Witness will testify that the transportation by rail, of crude oil, is inherently dangerous.  A description will describe the  horror  faced by a Eastern Canada community when a train carrying crude oil derailed.  Testimony will describe how the transportation of crude oil will be expanding.  Safety risks will be presented.  Federal regulation will be described, in testimony, as being in the molding hands of the railroads.  Testimony will be offered by a local doctor, describing the health concerns regarding Coal trains.  Testimony will come from the WA and OR physicians for social responsibility.  Numerous hypothesized risks for those living near to rail lines will be offered.  Testimony will be offered regarding the possible expansion of the transport of fossil fuels in the region.  Testimony will be offered as to the  secrecy and deception of BNSF  and unsafe practices of the railroad..  The defense individual acknowledges that all such testimony may be overwhelming and seem like a  sky is falling  moment.  He continues with a request for the jury pool to listen carefully as all this testimony speaks to  the very health of our community, for the future .

Next, Pro se opening Statement

Defendant wants there to be the chance for one  of us  to speak directly to you.  Defendant describes himself as a researcher, writer and a organizer for coalitions for positive change.  Defendant tries to start an explanation of why what was done, was more than outweighed by - and - at this point the prosecution objects, as the defendant is simply making an argument.  Objection is sustained.  Court directs defendant to outline the evidence he expects to offer.  Defendant continues by stating the defense intention to present testimony about the danger of climate change and the threat of oil trains.  Local testimony will be offered that climate disruption is not an abstract, rather here in WA it is here now.  Defendant describes his own efforts, dating back to 1998.  He will offer testimony as to  why we took this step , why it was necessary, given what we feel about a broken political system.  At this point prosecution offers an objection, however audio is not understandable as to the why of the objection.  Court overrules the objection.  Defendant offers that there was a need to spur a  upsurge  asking for change.  Defendant states that oil company's have actually researched climate change.  By 1990 these oil companies made a choice to  lie  about climate change.  Prosecution again tries to offer an objection at this point, is questioned by the court and states that in his own testimony he will  present this  and be able to prove these points.  He concludes with a request to consider the evidence that the defense will present and hopes that the jury will see how it relates to the actions the five took, that morning.

03:48:57  PM

Defense reserves further opening Statements.

Prosecution calls Sgt Margaret Anders of Everett Police Dept.

Witness has been with city of Everett, in the Police Department for 20 years.  Witness profiles her background and training.  Currently works as a patrol sergeant, and on the day of this incident, received a call to and did respond as one of several responders, as the highest ranking officer on scene.  Anders describes the North end of this switching station and near to the 529 bridge, as the location of the incident.  Anders next describes what she observed.  Describes the single track being blocked by a  tripod  looking structure, with one person at the top, and others around the base.  Testifies that she was at the scene for a few hours and that photographs were taken of the scene.

Officer testifies that it was  pretty much dark  when she first arrived.  Asked if the photos given to her for her to examine, have been altered in anyway, she responds  no .  She comments on a photo of the tripod apparatus.  Testifies that the tripod is situated on a concrete overlay, which allows for vehicles to cross the railroad tracks.  Describes the people in nearby locations observing, and a banner attached to the tripod top.  Testifies that the photo, ( Exhibit No. 2 ) is a fair and accurate depiction of the actual events of that day.  Next, she comments regarding photo  ( Exhibit No. 3 ), showing the 529 bridge, with people standing on the top, and some banners hanging down from the bridge.  Exhibit No.  4  is described as the fire department  bucket truck  approaching to interact with the defendant on the top of the tripod.  Exhibit No. 5 is the same truck, closer now to the defendant on tripod top.  Pro se and defense have no objection to the introduction of these exhibits.  Photos are passed to the jury for their examination.  Prosecution next hands States exhibits ( 8 thru 12 ? ) and asks if witness recognizes them and if they reflect what appeared to her on that day.  Again, witness says they are a fair and accurate representation of the events of that day.  She testifies that  ( Exhibit No. 8 ) looking  South  shows one of the defendants in one of the chairs at the tripod base, with background detail,  ( Exhibit No. 9 & 10 ) defendants at the tripod base, ( Exhibit No. ? ) man with mustache and lady in blue coat and ( Exhibit No. 12 ) shows female defendant at the tripod top and the banner associated with.  States exhibits 8 thru 12 are admitted.  At this time there is an extended period of  quiet  although there is some continued low lever mumbling being picked up, along with considerable paper shuffling.  Next, the witness is handed State's exhibits 19 thru 21 and asked if she recognizes those photos.   ( Exhibit No. 19 ) draws a response of  not sure where that was taken from.   ( Exhibit No. 20 ) is described as a  standard  railroad crossing with warning signage, she is not sure where it is withing the context of the rail yard.   ( Exhibit No. 21 ) is a close up showing  no trespassing  painted onto the bridge support members.  Again, she says they have not been altered.  Defense ( ? ) evidently objects to photo  ( Exhibit No. 19 ) being admitted.  Court then confirms that State's exhibits No. 1 thru 5, 8 thru 12 and 20 and 21 as having been admitted as evidence.

Witness then is asked to provide a description of the events of that day.  She responds that defendants where sitting in chairs at the base of tripod, not sure if the chairs were attached to tripod and that defendants were asked to leave.  Witness testifies that defendants refused request to leave.  Witness testifies that superior officers arrived at some later point and took control of the scene.

Defense cross examines the witness

Witness is asked about the concrete base the tripod is resting upon.  Witness is asked at what time she arrived at the scene.  Witness states she  does not know, says if was early.  Witness testifies she did not personally ask the defendants to leave the scene - she thinks defendants were asked by BNSF employees, eventually BNSF police officers arrived and asked defendants to leave.  Witness was asked if she was aware that the defendants offered to dismantle the tripod and leave the area IF media was allowed into the yard.  She responds  I don't remember anything about that .  Defense attorney ( female ? ) continues with asking witness if she actually spoke to any of the defendants.  State objects, court allows question.  Witness thinks she spoke with one defendant much later that morning after officials had decided to remove defendants from tripod.  Witness is asked about the number of persons ( officials or protestors ? )  in the yard, responds that the number was from single to double digits in number of.  Defense asks if persons were running ( ? ) around ( the yard ? ) ?  Further asks if persons were able to easily leave the scene by walking ( time to walk ? ).  Witness responds that there was a van, that persons walked to, taking maybe several minutes to walk to.  Witness was asked if any of these people ( now, finally identified as protestors, by content of defense's spoken questioning ) were arrested by witness.  Witness says she arrested no one and left the scene at the time when defendants were about to be removed from the tripod.   Witness was asked if she ever felt threatened by anyone, State objects ( relevance ) court responds that objection is overruled.  Witness testifies she did not feel threatened and that protestors were  polite .

Defense attorney McCallum continues for defense

Witness testifies that she did not write a report of her presence at this scene, but does have first hand knowledge that defendants were asked to leave the scene.  Witness  knew  that other officers were planning on asking the defendants to leave, but did not  hear  them being asked.

Defense attorney ( ? ) continues.

Defense asks witness to confirm that she did not ask or hear defendants being asked to leave, and witness responds,  that's correct, and that the protestors not attached to trip pod were given option to leave the property at ( time ?  )  and after  that  is when she escorted protestors off property.  Witness is asked if she knows the time when protestors left the property.  Witness responds she does not know what the time was.  Witness then confirms to question that it was several hours, at least, before protestors, not attached to tripod, left property - she states,  correct .

Defense makes motion to strike witness testimony regarding protestors  being asked to leave   as it is not first hand knowledge.  Court will hear motion in ( absence, presence ? ) of jury, and court asks pro se defendant if he has anything further ( cross examination )  - defendant responds  no .  Court then instructs jury regarding hearsay matters, and instructs jury to disregard any testimony by witness regarding the protestors being asked to leave the property.

State re directs this witness.

Defense objects to a  leading  question asked by State regarding the ease of entering and leaving the area ( yard ).  Court asks State to rephrase question being asked.  State asks if the property is fenced, witness responds  parts of it are .however, the area she was at was not fenced, for the most part, the tracks are pretty easily accessible.   Witness  thinks  she was not asked directly about the defendants willingness to leave if media were allowed in.  Prosecution and defense are finished with the first witness.

04:15:55  PM

State calls second witness.

Prosecution calls Police department Officer Marrs.  Full name is Wendal ( ? ) Marrs. Prosecution asks witness how long employed, response is 18 years.  Prosecution asks officer to detail his previous training record.  Prosecution asks witness about his general duties, witness responds that he works general patrol.  Prosecution asks witness as to his activity on the morning of September 2nd,  2014.  Witness describes how, on that morning, he was responding by computer screen log in his vehicle.  Prosecution interrupts to ask if  everybody can hear him ? .  Witness responded to a call to go to the rail yard.  Witness responds further ,  that he observed  a whole lot of nothing  when first arriving.  Witness adds that it was dark, the rail yard is big, and that he came onto the property from the South.  Witness said he started by asking employees what was going on.  Witness is asked how big the yard is, responds  it's big, huge .  Witness adds that many of the initial contacts with employees yielded a  no idea of what was going on .  Defense objects to the spoken manner of the witness, which is sustained, prosecution is asked to ask questions which can be answered.  Witness then answers to a asked question - he was responding to a group of people who had blocked a railroad track.  Witness was asked how  they had blocked it  and responded that it was blocked  with their bodies, and a little three prong structure, which they had erected, and then tied themselves to.  At this point there is a long pause in the audio, lots of papers being paged thru, and a male voice mumbling something in the background, followed by laughter.  Witness is asked if he recognizes State's exhibit No. 2, he responds  yes ,  I do .  Prosecution asks if that photo is a fair and accurate representation of what he saw on that day.  Witness responds  yes .  Witness was asked if he  engaged  these people ( defendants ? ) and he responds  yes .  Prosecution asks witness to describe what happened.  Witness states that he was  the first police officer arriving on the scene  ( what about State's witness No. 1 ? )  and he  didn't know what was going on  so was trying to relay information to other officers en-route and a supervisor, en-route.  Witness says he was approached, while still in his car by three persons, who identified themselves as  spokesman  for the larger group.  As asked by prosecution, witness offers that  he believes there were 13 people in the group .  Witness was asked,  what did it look like they were doing .  Witness responds  they were standing around, talking among themselves .  Witness was asked  were there signs and banners  ?  Responds,  there were ,   there was a sign hanging off the three prong thing ,   later on, signs and banners were hung from nearby bridges .  Witness answers as questioned   I didn't know what they were doing, but I knew they had some dissatisfaction with the railroad .  Witness was asked   did you speak with anyone who is in the courtroom today .  Responds,  I did,  ..... I don't see the spokespeople here, but after some time, I was talking with people tied to the prong thing and I spoke with a number of these people directly. .  Witness identifies  LaPointe,  Spoerri,  Minchew and ( considerable laughter confuses audio ) Brockway.  Witness does not remember speaking with Pro se defendant.  Prosecution lets the record reflect that all 5 defendants were present that day.  Prosecution asks if witness actually asked defendants to leave.  Witness responds with a vague, strung out unclear recollection - there is courtroom laughter.  Witness was asked how long he was on scene, he responds   I was there for a long time, .... until the contraption was pulled apart, I don't know the exact time, but I want to say it was the entire shift.   Witness was asked if he was there to see the defendants removed from the tripod, and describe how they were removed.  Responds,  a number of different tactics were tried,  because of the way defendants were chained to the bars and chairs, I know that our people didn't want to hurt them, so they were very careful, they tried different tools, and eventually used the  jaws of life .  Witness was asked if he made the arrests, responds,  BNSF made the arrests, we just assisted in transporting people to the station and ( last word was talked over by Prosecution ) .  Witness was asked about the people present, not chained to the tripod - Defense objects, court overrules objection - witness says those not chained to tripod were asked to leave.  Prosecution re asks if others were asked to leave.  Responds,  yes .  Prosecution states he has nothing further, Court makes remark about a defense attorney looking  ready to pounce  - considerable laughter follows.

04:27:10  PM

Female defense attorney cross examines witness No. 2.

Attorney asks a convoluted question regarding if witness was the first police officer to arrive and thus the officer in charge at that point in time.  Witness responds  I don't know if I would call it that, I don't know what our memo of understanding with the different agencies states,  concludes that he wouldn't say that he [ the Everett police department ] was in charge, rather in a position to funnel information to the different agencies.  Defense makes a statement about being the person in charge, first at scene and thus the power to arrest.  Witness responds, although, no question was asked,  yes  immediate laughter covers any further audio.  Defense asks if time period between his arrival and other official arrivals was 3 hours.  Responds  I don't exactly know , says he know a captain arrived fairly on, and somebody in plain clothes arrived, representing BNSF but they weren't a uniformed officer, prepared to make any arrest.  Defense attorney continues to make statements, looking for a response, rather that doing a rephrase, and actually asking a question.  Witness responds to this next defense statement by acknowledgement that there was a period of time when Everett police department was the only agency present, able to make an arrest.  Attorney states the the rail yard is  pretty open  and  for you  it was pretty easy for you , forming a statement into a question finally.  Witness responds  I wouldn't say it was easy ,  adds that he was able to access [ by making a long, convoluted explanation ] the rail yard.  Defense asks if witness had to go thru any fences to get there.  Witness responds he did not.  Court interrupts with comment ( direction ? ) to officer about his responding, laughter and audio confusion follow.  Witness says,  roger,  and court bursts into laughter.  Defense continues to make statements about events of the morning next, without asking questions.  Witness responds  yes  and a qualified  yes.  Witness continues that many people were supporting the defendants and some of them were not supporting police.  Defense asks if witness  got a good look at the tripod  and did it  look solid to you  ?  Witness States  not the kind of thing I would want to be perched on  ( again, laughter ) but looked like it wasn't going to fall over.  Again, defense makes a statement, in order to ask a question -  to your knowledge, this peaceful protest was against the oil trains .  Witness responds  I found out later, that was the main complaint , adds that one of the signs said something about conductors, not firing conductors.  Defense formss words for the witness, then waits for responses:   the main goal was ...   and   ...  you were there to .... .  Attorney begins each statement with the vocalized pause  Ummm ...  and goes on to state that witness  did not want to arrest anyone .  Witness responds  that's correct .  Defense offers the excuse  because they were polite , witness responds  ... It wasn't our primary  jurisdiction, I don't know the wording ... of an arrest, but BNSF police are .... they also have federal and state powers, I don't .  Defense  ... but you have  and  again, you didn't want to take them to jail .  Witness responds  I didn't want to take them to jail , Defense  again, they were polite to you  ( here, a specific question, by attorney ) ?  Witness responds  very  and at this prosecution objects, as  asked and answered .  Court sustains objection.  Defense attorney mumbles something ( move on ? ) .  Defense one again hides two questions in the form of two declarative statements, that the defendants, once free of tripod, left and that they didn't resist.  Witness agrees,  yes .  Defense next states that the defendant at the tripod top voluntarily agreed to come down and leave, witness responds  yes .  Defense and witness agree that the defendant was very polite.  At this point there are three already asked and answered questions resurrected by the defense, with no objections from the State.  Defense rests.

Attorney for A Brockway continues cross with 3 questions.    Mr. Goldsmith asked if witness remembers being asked to sign a petition by his client.  Witness responds  yes   Courtroom laughter once again interrupts proceedings.  Mr. Goldsmith asks if there were federal agents on site as well.  Witness responds  I believe there were, I wasn't personally introduced to them so I don't 100 percent know .  Goldsmith continues  were they undercover , witness responds  they were not wearing uniforms .  By statement, Goldsmith continues, there was more than one federal agent there. ?  Witness responds  I don't know .  Goldsmith says that's all I have, then proceeds to ask another question.   Are you familiar enough with the yard that you could look at a diagram and note the location of where the tripod was  ?  Witness responds  sure .  Courtroom mumbling and laughter follow, perhaps a piece of evidence is entered for the proceedings ( ? )

Goldsmith approaches witness and asks him to look at something, which he states has not yet been admitted as evidence and cannot be shown to the jury and states that the object is exhibit A and  do you recognize ?    He then mutters something about the evidence in question, looking more like an electronic drawing, than a railroad drawing, and continues  ... can you identify what that drawing is, if not, we will stop right here  ?   No .... no, this is weird .  There is laughter.  Defense offers,  no further questions .  Court asks if Pro se has any questions for the witness, response is  no .  Court asks if there is redirect.  Prosecution asks,  with regards to the tripod, while it looks sturdy, what if you had taken off one of the people from the legs, would you have concerns about it's integrity then  ?  Witness responds,  the people weren't the ones keeping the tripod up, uh, so no, I wouldn't have been concerned about it .  Prosecution responds,  OK, so, why were you concerned when removing the shackles, from ( indistinguishable ) why were you concerned to do it safely, for Ms. Brockway  ?  Witness responds,  If anybody has ever worked with firefighters, and heavy equipment, their kinda clumsy, so getting in there and cutting this thing is one area, if they had knocked one of the legs lose, and knocked it over then she would have fallen, and on top of them probably .  Prosecutor goes on,  with regards to BNSF and them being the ones who made the arrest, how well versed are you, would you say in train law, the laws of the railways  ?  Witness responds,  absolutely not .  Prosecutor,  so safe to say, their better served for that case  ?  Witness,  yes, sir .  Prosecutor has nothing further.  Court mumbles something about re cross.  Unidentified female defense attorney states   although you might not be an expert in train laws, I'm sure you had experience  with alleged trespassers .  Witness responds,  yes .  Court asks if there is any other defense re cross.  Different unidentified female attorney asks one question, which in fact turn into a series of questions, (1)  you were there for quite some time , (2)  it was a quite relaxed atmosphere in the Delta yard , (3)  ( indistinguishable, something about pizza ? )  ?  Witness responds  yes  and  yes  and then is interrupted by prosecution.  Prosecution states that questioning is outside the scope ( of trial ? ) and court sustains this ( objection ? ).  As there are no further questions from anyone, witness is excused.  Court asks prosecution to call it's next witness.  Prosecution asks to speak to court outside the presence of the jury.  Court announces that there will be a break.  Asks room to be seated, after jury departs.  Prosecution announces who would be his next witness, however that witness reported to the Everett division and thus prosecution feels the witness will not arrive at court location in time ( it is now approximately 20 minutes until 5 PM ).  Prosecution states that the witness's testimony will be the longest of all his witnesses, and that is his current ( ? ).  Court announces that trial will recess for the day, but first wants to additionally instruct the jury and asks clerk to bring jury back into court room.

Court asks if everyone can be in court at 8:30 AM tomorrow ( Tuesday ).  Court will try to have staff present and security ready for screening.  There is a long pause, considerable background mumbling and whispering.  Jury reenters court.  Court instructs jury to be back at 8:30 AM.  Court announces that arrangement has been made to screen jury at the side door, and jury is to leave today thru side door for familiarity with location.  Parking spots will be reserved in rear of building for jury.  Court gives another reminder about being exposed to outside influence regarding the case at hand.    Court tells jury once the case is over, the jury will be relieved of the requirement to not discuss with any outside contact(s).  Jury is dismissed for the day.

4:45:42 PM

The final file is simply court room noise, many conversations occurring, nothing recognizable.

End of Day One  ( Monday )

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