NOT SO GREEN  |  Delta 5, Day 2 - AM

By Steven Keeler | Sep 24, 2016
Source: NSG


The following document is Copyright ( c ) 2016 by Not So Green

Transcribed using the following technology :

The Record Player -
Build 203

Day 02 of the Trial

No. of  For the Record files :  57
All times are shown as 12 hour, AM, PM format

Preface to this document.

This partial transcript, and those that follow,  is an attempt to accurately and with detail, document the proceedings of a courtroom trial.  Snohomish county uses a commercial software package to record and create for distribution, a record of the proceedings of trial.  The technology  For The Record  and its software program player must be installed on a user computer.  Then, compact discs, which are obtained from the court clerk, may be played so as to  hear  the trial proceedings.  The proceedings are, on a daily basis, divided up into time slices, with each slice being a separate file.  File time lengths are 3, 4, 5 or slightly more minutes in length, as played in real time.  There is no explanation why one time slice is started or stopped at a particular instant with respect to what is actually going on ( being spoken, by someone ) in the courtroom.  Spoken sentences may be chopped in half, across two slices.

Now, as to the fidelity and procedures involved, I wish to make the following clear to those who will read what follows.  The court clerk instructions ( on paper, provided with the CD's ) do NOT identify which room microphones are assigned to which persons in the room ( or even area of the room ).  Further, there is no way to determine which microphones also belong to which volume control ( there are 5 ) when adjusting the player program.  Even more obstructive, are the instructions given by the Court and subsequent adherence ( or lack ) by those speaking and or present in the room.  Instructions may be given and then not followed consistently, microphone techniques may be good, fair or poor,  names may be offered with or without spelling,  questions may be repeated with wording altered so as to be unclear to a listener, the intention of the questioner.  Individuals speak up, mutter, speak over one another and do or do not speak closely to any microphone.  Unidentified individuals coughing, near to a microphone cover up microphone responses.  The overall audio recording experience is best described as  compromised .  So called  media  individuals may be heard to continue whispering after being admonished to be quiet, unidentified individuals pour liquids into glasses, shuffle papers and generate desk or surface noise as the proceedings unfold.  What results, when a written description from audio is attempted, may well have inaccuracies or omissions.  Therefore, quotes " " will ONLY be used when the author is certain of the spoken words.  The author of this document in its five parts, finds this CD distribution to be wholly unsatisfactory.  With this preface, the process will be attempted.  Note that where you read a question mark, in parenthesis ( ? ), it will be used so as to denote uncertainty in understanding the audio and perhaps, who is speaking, at that instant.  Keep in mind, the transcribed words attempt to match what was spoken, resulting in unusual, illogical complex sentences, at times.  Additionally, the Record Player interface allows for a  speed  control, which is used in an attempt to clarify spoken content.  There are no guidelines as to how to preset audio channel levels and use the speed control so as to make all the above documented shortcomings manageable.  One final technical note :  each time the  Record Player  program is started on a new file ( time slice ) all level and the speed settings are reset to  neutral .

Snohomish County District Court, Everett Division, Department 3

DAY 2  -  Tuesday SOD Department 1

8:46:05  AM

Court begins Day 2 session.  Prosecution has one preliminary item, calls to attention of court, something regarding an executive order.  Court asks if anyone on the Defense team wishes to be heard on this matter.  Defense and Pro se decline.

Someone ( from the Defense ? ) speaks up :  " for the record, Pro se has agreed to what we ( the Defense as a whole ) say, so, as a matter of efficiency, he will speak only when he doesn't agree.  Court acknowledges.  Court asks if there are any other preliminaries, a Mr. Goldsmith raises a " potential timing issue ".  This issue has to do with timing of the upcoming day and next day, as further presented.  The main point of this ensuing discussion has to do with the availability of a medical doctor, as a witness.  Witness lives in Bellingham, and is not available on tomorrow ( Wednesday ) so court directs Defense to contact this witness and then engages in further discussions regarding availability of witness by various voices who do not first identify themselves.  Courts concludes this discussion with pea for all involved to make the trial go smoothly.  Court directs all to be prepared to explain why any recesses are necessary and also explain all efforts made to get witnesses to the court for testimony.

Prosecution then announces that the state will be calling 3 more witnesses, and only 3 more.  First, a M Stapleton, a BNSF officer,  second will be the BNSF yard master, a Otis ( ? ),  the last being Travis ( Ostenberg ? ) . [ As a reminder, readers will remember that raising the audio levels, in the Record Player, while marginally raising the level of spoken voices, also raises the level of all background noises, thus adding very little in the way of attempting to understand what is being said ]  Someone from the Defense raises one last issue, and the court is heard to respond something, then asks if there is anything else.

09:54:30 AM

Jury enters the courtroom.

Once again, court announces to jury that it has been instructed to all that there are to be no photographs taken of the jury.  Court directs prosecution to call its next witness.  Prosecution calls M Stapleton.  Witness is sworn.  Prosecution asks how long witness has been employed with BNSF, witness responds " 7 or 8 years now ".  Witness is asked if he has been through special training with respect to his current position.  Witness responds, "  I've been through the basic police academy, that all police are through ".  Witness further responds that he deals with trespassers and burglary issues.  Witness responds that he is based out of the Seattle office of BNSF and covers the area from the Canadian border, down to Centralia, then east to the Cascade rail passes.  This jurisdiction is only the width of the rail right of way ( 200 feet ), yet very long.  Witness is asked if he was on duty the day of this incident.  Responds, yes.  Witness continues, that he was advised that there was an incident going on at the Delta yard, in Everett.  Further, that there were trespassers and protestors on the scene.  Witness states that he received a call about 6:45 AM and arrived about 8:15 at the site.  Witness observed about 12 individuals in the yard, easily identified as trespassers, that didn't belong there was a large tri pod set up over the tracks at the North end of the yard and on top of the tri pod there was a female, about 20 feet in the air.  This female was sitting in a chair and there were 4 other individuals sitting in chars at the legs of the tri pod, with one leg having two individuals.  All these individuals were chained across their bodies and said chains also around and across the tri pod.  Witness continues that he contacted the Everett police Sargent Andrews and asked her what was occurring since she had been there long before I arrived.  Defense objects to this last detail offered as hearsay.  Court sustains objection.  Witness is asked to describe how large the Delta yard is.  Witness describes the yard as having 20 sets of track widths and certainly over a mile in length.  Witness does not know the exact length.  Witness is asked if he spoke with the protestors.  He responds, " I did spoke with the protestors, ah .... and informed them all they were trespassing and they needed to leave ".  Witness says the protestors refused to leave.  Witness asked if there was anything he could do to help resolve the situation the protestors were here for.  Further, witness asked what the situation was, they ( protestors ) were here for.  Witness states that he was told there was nothing he could do, believes one protestor told him that he could stop the coal and oil trains.  Witness identified the 5 protestors that were chained to the tri pod and states that they are present in the court room today.  Witness is asked to point to each and identify them by their articles of clothing.  Brown shirt is Abagail Brockway, grey jacket is Patrick Mazza, black jacket is J. Minchew,  not described is  E Spoerri and blue shirt and tie is M. Lapointe.

Witness restates that he told all five protestors that they were trespassing.  Witness asked if there was something he could do and was told - no.  Witness then waited until his chain of command to proceed ( about Noon ) and then was given OK to start making arrests.  Witness states that he then, next, advised all protestors, including those chained to tri pod that they were about to be arrested for criminal trespassing and booked into jail if they did not immediately leave the property.  Witness states one of the 7 protestors not chained to the tri pod informed him that he was present as some sort of legal observer or counsel and wanted to stay throughout and was informed that he would be arrested and booked into jail.  All 7 of these protestors agreed to leave the property and were escorted off property.  Upon returning to the tri pod, witness informed the remaining 5 protestors that they were under arrest.  Protestors refused to be taken into custody and witness then individually addressed each of the five, asking them to be allowed to be taken into custody.  Again, witness says the protestors refused, so that witness advised each that they were under arrest for criminal trespass AND resisting arrest.  Prosecution asks how did witness get the protestor at the tri pod top to come down.  Witness states that at the end, she was removed via a truck that had a lift bucket to reach her.  Witness did not describe how this protestor was actually unchained and brought into the lift bucket.  Witness is ask about the other 4 protestors.  Witness responds, the Everett fire department used the " jaws of life " to cut the chains.  Prosecution mumbles something about a list.  Court mumbles something about numbered items ( exhibits ) on a list as being admitted.  At this point there is a long pause, lots of paper shuffling and several brief remarks by unidentified individuals.  Witness is asked if he took photos on the day of protest.  Witness responds that he did.  There is an additional pause, with mumbling.  Background talking and water being poured into a glass are able to drown out any other audio.

09:06:30 AM  long pause, background talking and papers being leafed through.

Court asks lawyers if there is something needed to be discussed outside the presence of jury and it is agreed that there needs to be a break.

09:07:40 AM

Prosecution instructs court that ( ? ) wants some of the evidence shown in ( ? ) photos produced.  A discussion is taking place as to how that can be done.  Evidently, the evidence that is requested can be produced by this afternoon or evening, as offered by the current  witness.  Defense clarifies, says that there is just one item they are requesting.  The item in question, as already referenced by a prior witness is some sort of apparatus one of the defendants was putting " her " arm into so as to try and make it harder for her to be arrested.  Further, Defense believes that some pictures being in evidence are misleading and / or blurred.  Photos in question are items number 24 and 27 ( ? ) .  Court asks for relevance in this matter.  Prosecution offers ( ? ) that there would be no relevance.  Defense offers that its an issue " of fairness ", if something is pictured, then what is the relevance of that ( picture ?? ) in the first place, why should it be admitted.  Pause follows while somebody tries to find something.  Next, prosecution states something about showing cables attached to train tracks.  Prosecution states something to the effect of relevance of some act to the train.  Defense rehashes the " fairness " argument being presented.  Court summarizes that the state must make the item available.  Jury is brought back.

09:12:52  Prosecutor continues with Stapleton

Witness is handed exhibits 16 through 19 and 24 through 29, and is asked if he recognizes the contents of the photos.  Witness identifies exhibit 16 as a photo of the North end entrance of the Delta yard, in Everett.  Asked and answered if photo appears altered, witness says no.  Witness is asked if the photo is a photo he took that day, and is it a fair and accurate representation.  Witness cannot say for certain that he took this photo on the day of protest.   Witness identifies exhibit 17 as a closer photo of the same entrance.  For this and remaining photo exhibits, prosecution will ask the usual " fair and accurate representation question, of witness, as well as whether photo has been altered in anyway.  Witness answers for exhibit 17 as yes ( fair ) and no ( altered ).  Witness describes this photo further, as that of also showing two no trespassing signs in the yard.  Witness next identifies exhibit 19 as show a " private property, no trespassing sign " on the opposite side of a driveway.  Witness describes photo exhibit 19 as a close up photo of a sign showing " restricted access, rail vehicles only, no trespassing ".  Witness offers, in succession :  exhibit 24 as showing the chains wrapped around the four protestors at the base and the one at the tri pod top ( prosecution states for response, " those were the chains that you had to cut ... " ) with a " yes " response, ( Defense asks for exhibit number ) and witness responds " that would be 24 ... " - photo exhibit 25 is a close up of one of the chains holding the defendants that day, and also showing the " master " lock " locking the chain.  Prosecutor asks if witness requested the key to that lock, witness responds " I did ".  Prosecution asks if the protestors produced that key and witness responds that they did not " they did not want to produce that key "  - photo exhibit 26 shows the end of one of the devices that was holding them ( protestors ) to the tri pod pole and the area where the jaws of life had to cut through.  Prosecution ask how long did that take ( cutting through the item ), witness responds that once they  got started, it was " pretty fast " and they he ( witness ) had to bring the fire department down to do that   -  exhibit 27 is described as " piece " that protestor Brockway had and tried to use.  At this point Defense objects to witness testimony, as perhaps he was not there to actually see what he is describing, with witness interrupting, saying " I was there ".  Witness is allowed to continue.  Witness describes further the item in the photo as a piece that protestor was using for several minutes to place ( attach ) around a tri pod bar, so that police could not quickly remove her, further, witness states " making it much more dangerous for everyone involved ".  -  exhibit 29 is described, with apologies by witness, that he is not a " climber " some kind of harness equipment used in climbing , he states he was told.  Prosecution asks who was wearing this item.  Witness responds it was on protestor Brockway''s person, and that witness does not know if she was wearing it as he did not take her down, but it came from her.

Prosecution asks that photos be admitted as evidence.  

Defense asks about photo ( was it taken at the scene ? ) 24, 25, 26 27 and 29.  Witness responds photo(s) were taken that day or that nite.  Court reminds Defense to show photos being discussed, as he holds them, so jury can see also.  Defense asks if photo 16 and 17 were taken on the same day ( day of protest ? ).  Witness responds photos might have been taken during the chaos or the next day.  Defense theorizes that the signs that are shown in photos 16 and 17, they, could have been added the next day.  Witness responds emphatic " no, I've been through that entrance hundreds of times, those have always been there ".  Defense asks " wasn't there a sign added next day, witness responds there was not.  Defense remarks " we'll come back to that later ".  Defense asks if photo 18 is a photo from the next day, witness responds " that is ".  Same questioning by Defense on exhibit 19, and the witness responds " that day or the next day ".  Defense asks with respect to photo 16, if the white truck or the black truck is that of the witness.  Witness responds that the black truck is his.  Defense stipulates that the white truck is a BNSF vehicle and witness responds that it appears to be.  Defense states that there is no other evidence that there are other people or vehicles in the photo, asked as question.  Witness may or may not have responded, audio record is unclear.  Defense continues, asks if the photo is directly where the protestors were sitting.  Witness responds that the photo was taken at the entrance to the yard, so there is a bit of distance to protestors.  Defense asks if the distance is 3 or 4 hundred yards, witness responds " approximately, yes ".  Defense rests at this point.  Court makes reference to these two groups of photos, perhaps as being admitted - coughing and paper shuffling covers audio.  Someone asks to publish these to the jury.

Defense continues.  Asks if witness eventually took into custody the five individuals, witness responds " I did ".  Defense then runs a series of questions together :  did you take a lot of photos that day ?,  did you take a lot of photos the next day ?  Witness responds that he did.  Defense asks if it is fair to say that all these photos tend to " blend together ".  Witness responds " yes ".  Defense again asks or states that the witness took into custody the five individuals and further, asks if they had any property.  Witness responds " they did ".  Defense pauses, is confused about what he apparently is handing the witness.  Defense stops in mid sentence.  Defense mumbles something.  Very long pause.  Lots of paper shuffling and coughing, nothing else.  Pause continues, now with whispering and footsteps in room.  At this point, Defense asks for a brief recess.  Court instructs jury and room rises for jury to exit.  Court asks Defense something ( unintelligible )  and Defense responds " no ".


Court proceeds.  Unintelligible remarks and laughter follow.  Defense advises court that witness Dr. James will not be available later, this afternoon, and has asked to be introduced on Thursday morning.  Judge responds.  Judge asks about two additional witnesses scheduled for this day.  Defense responds, will contact both during the break.  Defense also announces that they will check on a Wednesday scheduled witness to see if there are any issues regarding appearance.  Jury enters.  Defense continues questioning witness regarding exhibits 16 thru 20.  The question in point, regards the signs posted at the rail yard.  Defense asks if witness has anything else he wishes to add.  Witness responds, in summary, that it is possible that one of three signs in question may not have been there ( there, when ? ).  Defense gives witness states exhibits 31 and 32 and asks if he recognizes the signs in these exhibits.  Witness responds, " I do ", and adds the substance of the content has not been altered in anyway.  Defense asks how the witness found those, on the day of arrest.  Witness responds, after the arrest of the suspects, their backpacks were searched, and those items were found to be in that property ( of three defendants ).  Defense asks what perishables were included in the suspects property.  Witness responds, food - sandwiches, fruit, and adds it looked like a good days worth of food.  Defense asks if it seemed as though defendants were prepared and witness responds, yes.  Defense asks how the defendants appeared.  Witness responds, they had wet weather gear on, heavy jackets, prepared for inclement weather.  Defense asks if they were wearing anything else, in anticipation of being there a long time.  Prosecution objects to this last question and court sustains the objection.  Defense asks if defendants were wearing diapers, indicating that they would be there a long time.  Prosecution objects again, court sustains again.  Defense then asks if items 24, 25, 26, 27 and 29 can be admitted and published to the jury.  Defense then apologizes about something, unintelligible and then references items 20, 19, 18, 17, and 16 and asks for these to be published ( to the jury ).  Defense asks if the railroad yard is located in Everett and if that is in Snohomish county.  Witness responds yes.  Events then occur that are unintelligible.  Something about all marked exhibits.  Court then asks Defense McConnel if she wants to wait until later on ... mumbling and a mumbled response.  Next, follows a one minute period of paper shuffling and occasional mumbling.  This is followed by coughing and more mumbling.  Someone whispers " maybe two hours, at most ".  Defense states to the court that respect to the property, it may be about two hours ( no reference to any context for this statement ).  Court tells McConnel to proceed.


New Defense attorney ( ? ) begins questioning witness, does not identify herself, the assumption is that it is McConnel.  Asks if Everett police were present when witness arrived on scene.  Defense asks if police were milling around the yard, witness responds he cannot recall where he contacted them but is sure they were congregated at some point.  Defense asks, by stating, it was a pretty relaxed atmosphere ?  ( this Defense has the annoying habit of making statements, then asking the witness to agree, rather than asking direct questions ).  Prosecution objects.  Court overrules.  Witness responds, he can't recall but we weren't on pins and needles.  Defense again states the the officers he observed were interacting with defendants, then turns statement into a question.  Defense restates, did you observe ?  Witness responds that he is sure that he did.  Defense asks if interactions were polite, witness responds, " to me they were. "  Defense then asks witness to confirm that he advised defendants at 12:09 that they were under arrest.  Witness responds that it was somewhere around Noon.  Defense states quetion as " and you arrived on scene at, you testified,  8:15 " .  Witness responds he believes that is correct.  Defense asks witness to elaborate on the delay between his arrival and the time of arrest.  Witness responds no, he can't, he is a low level grunt guy and does what he is told.  Witness adds it was above his rank as to how to proceed.  Defense asks if witness got an order from someone else, to place them under arrest, and witness responds " yes ".  Coughing then garbles the Defense's next question, something about others in the yard.  Defense clarifies the question, others besides police and the defendants in the yard.  Witness responds that there were 7 additional trespassers in the yard.  Defense asks if those 7 were removed from the yard, witness responds they voluntary left the yard.  Defense then ignores the previous answer and asks " once those people were removed, the track adjacent to ( something ) was open.  Witness responds that it was open to slow moving traffic.  Defense then asks witness if he was aware that defendants were willing to disassemble the tripod and leave the yard, if media were allowed to come into the yard.  Witness respons that ( Defense ) saying that is the first he had ever heard of that.  This Defense has no other questions.  Court asks Defense McConnel if she has any other questions.  New Defense ( ? ) wants to ask about policy and procedures.  Defense states that she assumes witness is familiar with trespass law.  Witness responds yes.  Defense asks if there is a specific procedure followed, like, warning, citation and arrest, that you go through when you encounter these trespassers.  Witness responds that " we are supposed to make arrest, without exception ",  for anyone trespassing on the tracks or in the yard,  however the majority of the time, we use discretion and decide what to do ourselves.  Defense asks then, if witness has some discretion to issue a citation or give a warning.  Witness responds yes.  Defense continues, despite the zero tolerance policy.  Witness responds " were supposed to have zero tolerance, we still use our ..... Defense interrupts, asks, by stating, you have never delt with any protestors, in the yard.  Witness responds no.  Defense asks, by stating, that there is no specific policy or procedure in place to deal with protestors.  Witness responds no.  Defense speculates, leading into a question about the witness not even having a choice as to what to do.  Witness responds no, correct, he was told what to do that day.  Defense asks, by witness's discretion, the other 12 people were not arrested, witness corrects Defense, the other 7 were not arrested, by his discretion.


Prosecution resumes (  ? ) questioning witness.  Prosecution shows witness defendants exhibit A.  Asks witness if he can identify.  Witness responds that the exhibit ( a photo ?  a diagram ? ) appears to be Delta yard, if he is not mistaken.  Prosecution asks if that is an accurate depiction of the tracks in Delta yard.  Witness responds, he doesn't pay a lot of attention to the track lines, the exhibit appears to be correct.  Prosecution asks if witness can locate on the exhibit where the defendants were located that day.  Witness responds,  he believes so, but this exhibit is new to him and he is not 100 percent certain.  Someone asks ( Prosecution ? ) for the exhibit to be held up so jury can see it.  Prosecution asks witness to show all where he believes the defendants were.  Witness responds he believes it was right in this area here.  Prosecution explains that witness is point to an area that is the Delta track, isn't that where they were, and states as question, isn't the Delta track the main line.  Defense objects, states that Prosecution is testifying and Court overrules the objection.  Witness responds, " i don't work in the yard, so I don't know all the names of the tracks, goes on, they were ..... this is ..... and asks about a line  ( track ) going off of something.  Prosecution shows witness a photograph that might help him to clarify his response.  Prosecution shows witness Defense exhibit B, asks if witness can identify that.  Witness responds that this is the location that the tripod was set up on.

Defense asks if the exhibit is an accurate representation of the location on Sept. 2nd,  2014.  Defense asks court for the admission of exhibit B.  Prosecution does not object.  Defense continues, wants witness to look at B, and a map and determine where the content of B is on the map shown.  Witness responds with qualifications and then states he is not positive.  Defense wants witness to make a mark ( his initials ) on the map ?, where he thinks the depiction in B is.  Defense asks court if he can publish the witness response to jury.  Court says yes.  Defense then asks for admission of defendants exhibit A.  Prosecution does not object.  Court responds ( partially obliterated by loud female cough ) that both A and B are ( admitted ? ).  Defense asks witness to step down from the witness box and show jury where he marked exhibit ( A ? ).  Background discussion by court and unidentified follows, evidently about the activity taking place.  Defense comments about an overpass on A and a nearby road, for some reason, and witness responds that if, he is correct, something is much closer to a certain track.  Defense asks about a certain track only leading to four other certain tracks.  Witness responds he believes ( it ? ) is the storage track, if he is correct.  Defense ask witness to recall exhibit B and state which direction that picture was taken from.  Witness response that ( it ? ) would have been taken from Highway 529 and looking south bound, he guesses.  Defense tries to summarize, with confusion, what the witness has been responding with about A and B.  Defense asks about a train being stored, as shown in the ( picture ? ).  Witness answers that he found out at some point that the train wasn't leaving until the next day, or later that night.  Defense states as a question that the train was not then, being blocked by the protestors.  Witness answers, I do not believe so.  Defense then repeats earlier statement about 7 other protestors leaving and that witness is stating that, that is when they left.  Defense continues that this leaving was around Noon, so other protestors had been there around four hours.  Witness responds that he thinks it was closer to six hours.  Defense and witness agree, after back and fourth, that other 7 were there for around 6 hours, and then allowed to leave.  Defense then tries to reference earlier testimony about another sign being added ( the next day ? ) and forms a question, there might have been another sign added the next day.  Witness agonizes, concludes that he cannot recall and further, that he did not write anything about that is his narrative.  Witness continues, he is pretty sure that the picture ( exhibit ? ) was taken that evening or the next day, so those ( ? ) signs would have been there yet, now his mixing it up with hundreds of times he has been there.  Defense then references States exhibits 16 thru 20 and asks that it looks like all those pictures were taken in the daytime.  Witness concludes that there is sufficient daylight to say that it was daytime.  Defense states that it seems likely that all these photos were taken the next day and waits for response.  Witness answers he did not write specifics on this detail in his report and he does not know.  Defense then asks witness to confirm that he was not the one making decision on when and who to arrest.  Witness says that is correct.  Witness continues, that it was between his supervisor, Russ Schafer and Everett police and that witness did not know what was going on.  Defense continues, regarding exhibit A, this area ( ? ) is all part of the large and long yard, witness interrupts that it is all part of the Delta yard.  Defense states that the Delta yard is quite wide and not as narrow as other properties.  Witness states, that is correct and adds he does not know how wide it is.  He adds that it looks as if it is close to 15 tracks ( wide ) and that he thinks he is correct.  Defense asks about the function of certain tracks and witness responds that he thinks they are switching tracks, but doesn't know exactly.  Defense again repeats by asking if trains did pass by the protestors position on that day and witness states that he believes that tracks were opened up and a train did pass by.  Defense asks witness if he knows which tracks on exhibit A were the tracks that let trains pass by.  Witness references exhibit and states that it would have been here.  Defense then asks if it would be that trains entered into the switching yard and not the storage yard.  Witness responds and further responds that he has no idea what the trains were doing, but that they were going by.  Defense asks if jury is finished with that picture ( not identified, for the sake of audio clarity ) and takes it back.  Defense then asks court to allow witness to leave the stand and help the jury be clear, via explanation, where on this diagram, this picture was taken.

As a note :  Defense has upon so very many occasions referenced " this picture, this diagram " without fully identifying each by its exhibit name, that ONLY confusion can be an outcome, rather than any logical thread.  All this occurring while the court makes no effort to require Defense to be exact in making references.

Witness responds, that he believes, and further, it is hard for him to read this because he does not use it in his job, that the one, two, three, four, it looks like there are five tracks here, that the four are these tracks right here and then there is a road in the middle and more tracks which you can't quite see, to the right, so I believe we are set up ( at this point, someone says that he thinks witness is blocking the view ) right about there.  Rather, that's where the tripod is set up.  Defense states that the camera is placed on 529 and witness responds that it is someplace on 529.  Defense asks if train that is being stored is the train at the top of the photo.  Witness answers yes and yes sir regarding a certain distance from where the protestors were.  Defense asks witness if he had some contact with his client, Abbey Brockway.  Witness responds yes.  Defense asks if Brockway asked witness to sign her petition, at this point Prosecution objects, as calls for hearsay.  Court overrules objection.  Witness answers he does not recall.  Defense asks if his client was polite with witness, witness responds very much so.  Under further questioning, witness adds that the only issue he had with Brockway was at the end, when he told her " I think you've made your point, and it's time for you to come down cause were going to be taking people off the legs .....  Defense interrupts, asks about safety issue.  Defense goes on, " she didn't come down then ".  Witness continues, " it was more of a safety issue for us and her at that point.  Defense interrupts, continues, " once the firefighters came, she cooperated with them to the extent that she followed their instructions on how to get off that tripod, correct ".  Witness responds " NO " !  Witness continues, " she tried to .... again, Defense interrupts, " now before ... after that point, she .... ".  Witness continues, " once they were up there ... ".  Defense again interrupts and give and take are confusing.  Court announces that the session is being recorded and further " it's a disaster ", " your talking over one another " and to wait for questions to be asked and then wait for answer.  Defense interrupts court, apologizes.  Defense continues " as you testified, the land goes from Canada, all the way down, Burlington Northern has .... from Canada to where " "  Witness answers, " well, Burlington Northern has tracks throughout the country, but my jurisdiction, being out of Seattle, my main area of concern, is from the Canadian boarder south to Centralia and over to the passes ".  Defense states as question, that it is a large portion of land.  Witness answers yes.  Defense asks if witness is a private security officer for the railroad.  Witness responds NO, I am a commissioned police officer for the railroad.  Defense again asks as statement, " but your employed by the railroad.  Witness answers  "  I am, were the only private corporation in the United States that has police officers that work for the company ".  Defense, " OK ". Defense then asks " are you aware of how Burlington Northers acquired such a vast swath of land " ?  Prosecution asks court for relevance.  Court sustains objection.  Defense has nothing further.


Court asks other Defense if they have anything further.  There is nothing further.

Court directs Prosecution to re question.  Prosecution comments that Defense was speaking to witness about the defendants being polite and being taken into custody and such, and so now I am going to continue on at that point.  Prosecution advises that he handed witness something ( ? ) that was found on the five, no three of the five defendants taken into custody, is that correct ?  Witness responds that is correct.  Prosecution asks witness to identify the objects.  Witness answers that " these are letters, basically they are testaments, stating why they are doing what they are going to be doing ".  Prosecution asks if objects are a fair and accurate representation of how they were at the time they were put into evidence.  Witness responds yes, and further, they have not been altered in anyway.  Prosecution asks if court would like the letters read into the record or would you like me to submit them into the record.  Court asks Prosecution " what do you want your witness to do ".  Prosecution responds, that's what he will do and asks letters to be admitted and published to jury.  Court grants Prosecution that items 31, 32 and 33 are admitted.  Court announces pause so that jury may read letters.


Prosecution advises court that jury has finished examining the three letters.  Prosecution first ask witness about the requirements of his employment, is he required to know details about the Defense's items of exhibits, more specifically, the locations of objects in the yard and the locations of items on maps and diagrams.  Witness answers, " NO " and adds further he knows the yard, but not specifics of the " lines ".  Prosecution asks if there were other trains in the yard that were " shut down " as a result of this protest.  Witness answers " yes ".  Witness adds he cannot give a time estimate as to how long other trains were delayed, but that they were delayed the entire time the yard was shut down.  Prosecution asks " when your boss gives you a ring and tells you to do something, what do you do " ?  Witness answers " I do it ".  Prosecution has nothing further.

Defense ( ? ) states, let's look at exhibit A again.  Defense asks, " you say other trains were delayed, where were they coming from, which tracks on exhibit A ?  Witness responds, as Defense states that witness had previously testified that other trains were passing thru, that initially " they " were concerned for safety issues since the tripod was situated next to what he terms the " main line ".  Witness continues, at some point, after discussion with defendants, trains were able to proceed.  witness does not know how long " tracks " were closed, but when they were opened, they were opened at a very slow speed.  Defense asks for a mark as to where they were then ( ? ) and witness responds that he will put a X on the exhibit.  Witness guesses the mark would be 10 feet from the mainline track.  Defense asks if witness knows that was there a train that was going to turn down the line that they ( ? tripod ) was on.  Witness answers no, he does not know.  Under further questioning, witness explains he has no idea as to whether any trains could have been going to the track they were on ( ? ) .  Defense reminds witness that he has said that this is not his area of expertise, and witness answers " not at all ".  Defense states he is going show witness exhibit C and interrupted ( ? ) by someone and then Defense apologizes for some reason, " my mistake " and asks witness to hold C to himself  and identify those two pictures.  Witness answers these are the tri pod locations and there are trains in the background there.  Defense asks witness if he knows if those trains were moving.  Witness answers the trains were not there when he got there, so they had to be moving.  Defense states that, so then, they obviously had to be moving.  Witness answers that he would assume so, yes.  Defense it that ( ? ) is an accurate picture of events of that day, September 2nd, 2014.  Witness responds yes.  Defense then moves to admit defendants exhibits C and D.  Prosecution does not object.  Defense has nothing further for witness.  Court asks other Defense if they have anything further, only Mazza requests further and asks, why Burlington Northern is the only .... Prosecution objects at this point.  Court directs Prosecution to let defendant finish his question and then court will respond.  Mazza continues, is the only private corporation in the United States that's commissioned to have it's own officers ?  Prosecution objects again, question is outside the scope.  Court responds that it is outside scope with respect to re-direct but it was related to questioning that was on direct, but as Mazza did not have any questions at that time, he is limited ( and objection is sustained ? ).  Court asks if Mazza has any further questions.  Mazza responds no.  Defense has nothing further, witness is excused.


Court announces a morning break, advises jury to not discuss case.  Court advises that proceedings will resume in 10 minutes.


Court resumes.  A Sturdivant for the Prosecution raises an issue before the court, the jury has not yet entered the room.  Evidently photos of two of the jurors have been " tweeted " ( ? ).  Further, suggests concern for the safety of those involved about the intent of the process ( ? ) .  He comments that Defense has been informed of this issue.  Prosecution asks court as to its intentions at this time.  Defense ( unidentified ) accepts courts invitation to comment.  Defense responds that the prosecutor gave Defense the name of a person who did that ( ? ) identifies a woman who is somehow involved and then a man standing in an area which Defense describes to court.  Defense does not know exactly when this man took it ( ? ) but it may have been before the court advised all about taking pictures of the jury.  Defense thinks the man is not present today.  Defense offers that they evidently can get a contact to this man and have him appear.  Court asks state how it wishes to proceed.  Prosecution answers something about safety and asks court to consider for the jury to be sequestered.  Court asks for ( ? ) to be admitted and mumbles something else ( ? ).  Court asks if there is someone in the room from environmental action.  Court announces that it will take this matter under advisement and that there is nothing it can do until court knows who posted this ( photo ? ) and who took the photo.  Court further announces that it does not have at its disposal a law enforcement agency to investigate the matter.  Court adds that if the state wishes to investigate, then the court will hold a contempt hearing for anyone accused of taking or posting this photograph after the courts specific and detailed instructions.  Prosecution advises court that the matter is being investigated at this time.  Defense ( ? ) then states to the court that they have received information that the name of the person who took the photo is Anthony Roger Wright.  Court asks if Mr. Wright is present.  Court asks if anyone in room is aware of who has access and can post on the twitter account in question.  Unidentified individual speaks up, states that court may have spoken to a person yesterday, observed to be taking photos.  Court recounts that he did speak to an individual and ordered him to delete all the photos that were taken.  Court responds that it would recognize that individual if it saw him again.  Court announces that, if, in the future the individual is recognized, court will notify building security.

10:54:15  Jury is brought back into the court.

Prosecution calls next witness, a Otis Compton ( ? ) and further mumbles something, covered by paper shuffling, female voices whispering and coughing.  Prosecution asks if Officer Stapleton was excused, court replies yes.  Witness is sworn and states his full name, it turns out his last name is Coppock.  Prosecution asks how long witness has been working for BNSF, witness responds since October of 2005.  Prosecution asks witness for his title, witness answers he is the Division Train Master, in Wenatchee, Washington.  Before, witness was a terminal trainmaster, in Everett Washington.  Prosecution asks witness to describe his duties.  Witness answers, we ( ? ) manage the crew base and train operations into and out of the Everett terminal.  Prosecution asks, if as part of those duties, for witness to describe the kicking of cars, if it is a part of the duties.  Witness answers that we ( ? ) process cars in the yard, we oversee the operation and build trains for leaving the yard.  Witness adds, we process trains that come in, we build blocks that leave for other stations, build outbound trains.  Witness is asked if he was on duty on September 2nd, 2014.  Witness responds yes.  Witness is asked to describe what is going on in the Delta yard on an average day.  Witness takes turn over at 6 AM, we find out what trains are in the yard, what trains needed to be processed for the day.  We primarily follow a transportation service plan which can be similar each day, varying by the number of cars inbound that day and many will then, be produced for outbound.  Prosecution as witness when he is on side, where is he.  Witness responds in the Delta yard office.  Prosecution asks how far away is that from where the protest was occurring.  Witness answers approximately 4,000 feet.  Prosecution asks if witness saw the protest occure.  Witness states he did, but did not walk up directly to the structure, we ( ? ) saw them first turn over from the yard master, contacted local law enforcement and then I drove to the area.  Prosecution then offers as has been previously testified to, that trains were delayed that day.  Witness responds yes, trains were delayed.  Prosecution then says that they ( ? ) run thru symbols ( ? ) and asks witness to explain what these symbols are.  Prosecution asks what is M E B E E D E ?  Witness responds :  M = manifest train, box car traffic, starts in Everett, goes down to Seattle, picks up, drops off cars and brings them back to Everett, Washington.  Prosecution asks if that ( ? ) was one of the delayed trains.  Witness answers " correct ".  Prosecution asks if there was any oil on that train.  Witness answers not that he is / was aware of.  Prosecution asks, with confusion, are trains mixed, do they only do box cars, or oil ?  Witness answers that a manifest train with a multitude of things.  Witness adds there are commodities and there could be a oil car in there.  Prosecution next asks, what are N W E 8 2 3 1 0 ( letter O, or zero ? ) 2 ?  Witness answers so thats an R ( ? ) a road switcher, a 3 person crew, they take power from the Everett yard and service customers in the gold bar area as well as the Richmond beach area.  Prosecution asks, what kind of car again ?  Witness answers that thats a road switcher.  Prosecution asks what does that do, witness answers that they go out and service local customers - taking cars out of the Everett yard, servicing customers and then bring cars back.  Prosecution asks if that ( ? ) was delayed.  Witness answers yes.  Prosecution asks what the effect would be of having a road switcher delayed.  Witness states customers would not be serviced on that day.  Prosecution asks, " so, gold bar is kinda SOL that day ".  Witness answers thats correct.  Prosecution next asks about R N W E 8 1 8 1 O ( letter O or zero ? )  2.  Witness answers, that's a road switcher train, goes North, into the Conway area, and also services the Arlington branch.  Prosecution asks if that train was delayed, witness answers that's correct.  Prosecution asks if there would be similar implications if that train were delayed.  Witness answers yes, any customers planned for service that day, would be delayed.  Prosecution next asks about a different manifest train.  Witness responds, explains further and at request of state, explains in detail about this train, whose ultimate destination is Tacoma, beginning North of the border.  Witness adds, cars that were destined for Pasco, or down into California, would be taken off, and cars added that were destined for Tacoma.  Prosecution then asks about one more train, witness responds that it is a yard train, it stays local, and processes the Everett traffic ( ? ).  Prosecution asks if those are the one's moving cars from line to line.  Witness responds correct.

Prosecution hands witness an unidentified exhibit and asks if he recognizes it.  Witness responds yes, this is the previous version of the Everett area.  Prosecution asks witness to make a mark where he thinks protest was.  Prosecution observes and comments that it is the same location as previous identified by prior witness.  Prosecution asks if that line ( ? ) would prevent any of these ( ? ) trains from doing their job ?  Witness, " so, our trains can use this line that line and the line next to it as well as come in here ( ? ) and set up any of these yard tracks so yes, they would be prevented until we knew what was exactly going on.  Prosecution asks about some sort of proximity concern.  Witness explains the need to stop all movement when there are non railroad employees in the yard, until it is determined that there are no safety issues.  Prosecution inquires what is the average stop time ( time for a train to come to a stop OR time train is stopped in the yard ? )  in the yard and witness answers it is based upon tonnage and length.  Prosecution then asks if a train can stop on a dime, or a quarter.  Witness says no.  Prosecution asks about a quarter of a football field, witness says perhaps, with qualifications.  Prosecution asks witness about his training when in the yard, with respect to being near the tracks.  Witness says there is training on this subject and that we try to stay clear of the tracks, look in both directions before crossing the tracks, and the yard master would control all the yard movement, within our yard,so he would know or she would know who was coming and going and where we were processing cars at the time.  Prosecution asks " would you consider that a dangerous facility, witness responds yes sir.  Prosecution asks, " heavy machinery " ?  Witness answers, yes sir.  Prosecution says " you were overseeing people on site as well, how many people are you responsible for in your duties " ?  Witness answers, within the Everett terminal it would be anyone on duty that was going North, into Canada which could be 5 or 6, yard jobs, another 9 to 12 per shift,  and then 3 yard masters per shift as well.  Prosecution offers, " so part of the concern is that these people were untrained as to how to be in the Delta yard ".  Defense objects.  Defense objects, mumbles something, court sustains objection.  Prosecution asks " why was the yard shut down ".  Witness responds that " we stopped movement on that end, because of the location of the protest - we didn't want to move any equipment by that location ".  Prosecution asks how long until closure on the entire yard was lifted.  Witness does not recall, would have to look back at records.  Prosecution asks a convoluted, interrupted question , regarding the manifest trains and how long that could be, like what would the length be ?  Witness answers it would be under 8,000 feet.  Prosecution asks how short can it be.  Witness responds around 5,500 feet on average.  Prosecution asks what would it take to stop that.  Witness answers question with question :  at 10 miles per hour, entering the yard.  Prosecution says yes.  Witness answers that weight would come in " longer ( as being more important ? )  " than length would, those trains vary on up to 14,000 tons.  Prosecution interrupts, what would 14,000 tons take ?  Witness responds ( at 10 miles per hour ) he couldn't give an exact estimate, then counters question to Prosecution - are you asking specifically about that location.  Prosecution says " yes ", " witness continues, if you came around that curve, with a 14,000 ton train, it would take a great deal of distance to stop and that's why ( ? ) was stopped.  Prosecution says " understood ".  Prosecution asks if there was an oil train on site that day ?  Witness says he believes there was one in the pictures, doesn't know if it was loaded or empty.  Prosecution asks if it ( ? ) was intended to be moving at that time.  Prosecution asks if it was intended to be moving at that time, witness responds no, it was not.  Prosecution states as question, " so it wasn't going anywhere that day ", witness answers no, it was not.

11:07:16  Defense ( Joyce ? ) begins cross examination.

Defense states that witness indicated with respect to a certain location on the lines, as indicated on a exhibit, that delays occured.  Defense continues, coughing masks about half of his muffled voice.  Witness responds, that is correct.  Defense states that because on typical days, there are delays based upon certain activities in the yard and then asks based upon ( ? ) you have to adjust ?  Witness answers yes, there could be various circumstances where a car could be delayed.  Defense asks, that under those circumstances, that you, being in charge, would you ever order cars to back up and proceed on a different line, if able to ?  Before witness answers, Defense makes some confusing example of how a car might re position so as to be able to proceed ?  Witness responds that if we had some sort of interruption, it is physically possible.  Defense then states as question, that witness testified he was physically present at the protest site ? Witness responds  ...  I drove down there initially Everett PD was already on scene as well as my supervisor and ( name ? ) as well as the supervisor and then I went back to the office so I could supervise and communicate what delays were coming in and going out of the yard.  Defense asks if witness recalls an email where witness indicated that you were still able to build the trains.  Witness answers, we were.  Defense continues, asks about one of those trains, EBE1042, was that train scheduled to leave the yard that day ?  Witness responds, no, with a Y in front of it, that's a yard job, so they would be part of the crews building our outbound trains.  Defense asks if that train, potentially would have to move through that area of the yard ?  Witness responds, yes, they would be able to work near the location.  Defense asks, if on that day, witness recalls that the Y train was delayed for 8 hours ?  Witness answers, right, so based on the picture there, that part of the yard is where cars are switched, so cars were pulled and switched on adjacent tracks near where the location was ... so ... it was deemed unsafe to do that until we knew exactly what was going on down there, so we had the Y train do other activities that day.  Defense asks witness if he recalls at what time that particular train was free to do other activities ?  What time of the day did it start other activities ?  Witness answers he doesn't recall the exact time, he does know we sent them down to relieve the 3rd shift yard job that was stuck outside the activity, the base side yard.  Defense asks what time would that be ?  Witness responds, approximately 10 o'clock, and agrees it was 10 AM.  Court asks Defense ( Chung ? ) if he/she has any questions .... there is silence.  New Defense attorney ( Holt ? )  responds and continues, let's bring back exhibit A, and asks for it to be shown to jury.  Defense sks witness to stand for some reason and continues, states witness testified about four trains that were delayed, correct ?  Witness responds yes.  Defense continues, is it far to say none of those trains where in this area, coming into that track the protestors were on.  Witness responds to clarify, questions, were they physically in this location at the time ? Witness then answers, they were not in this location at the time.  Defense continues, is it fair to say that this location, the location being pointed to and described as the four lines running into this particular track where the protestors were, on exhibit A , correct ?  [ at this point it must be made clear that Defense never formed a question, unless an observer where to inserts the word * is * between ' track ' and ' where '  in the previous ' sentence ' ].  Witness however answers with a " that's correct ".. Defense ask if those four lines are known as the storage area ?  Witness responds, yes sir.  Defense states and asks,  the lines all above this, and there are 10 or 12 lines that lead all the way up to the Delta track ( ? ) on exhibit A is that the switching yard area ?  Witness answers, right.  Witness continues, we would switch out of these tracks as well sir.  Witness goes further, 13 thru 1499 ( ? ) would be where we process our cars.  Defense asks if witness can say for certain that any of the trains that were delayed were actually going to go on the track that the protestors were on ?  Witness answers, it was very common for the PRG ( ? ) track to sit out there through portion, in the storage yard.  [ Response by witness makes no sense, but Defense plows on anyway ]  Defense states " common ", but can you say specifically on that date were any of those four trains going to go on to that actual track ?  Witness responds he would have to look at the manifest for ( ? ) to answer that question.  Defense asks if today, in court, the witness does not know ?  Witness responds, yes sir, I'd have to look specifically at the train ( ? ) on that location.

Defense asks, do you agree, delays were done by yourself and other officials of the railroad, decisions by the railroad for safety reasons, you made that decision ?  Witness answers, we did, we made the decision not to occupy the track near staff, for the safety of our staff and the safety of the protestors.  Defense asks, as far as you know, there was no train visible to the protestors that was approaching their location ?  Witness answers, no we stopped all that while they were setting up.  Defense restates and asks again, the protestors would not have seen any train moving toward them, is that correct ?  Witness answers, on that date I don't believe they saw any trains moving towards them, the only one that could be in question would be the yard job that was coming from base side, back over to Delta.  Defense shows witness exhibit B and asks the witness if that is a fair and accurate picture of how things were on that morning ?  Witness answers, it looks accurate.  Defense states there is a train stopped in that picture, and asks if that train was scheduled to move that day ?  Witness answers, it was not.  Defense asks if it was in the storage yard, so to speak.  Witness answers yes sir.  Defense asks if it was " on " ( ? ).  Witness responds, " on " ?  Defense then asks, the motor wasn't on, was it ?  Witness responds, it wasn't.  The court room erupts into talking and laughter at this point.  Defense asks what time did witness go out to the location of the protest ?  Witness answers, so I would start taking turnover at zero five thirty in the morning, to have the watch by O six hundred, so it would have been very soon after that.  Defense asks about a single locomotive, with no other cars, how long would that take ?  Witness answers, if the railroad has those facts, I don't have them memorized.  Defense asks if witness has ever been on a locomotive in order to stop it ?  Witness, I'm not a locomotive engineer.  Defense asks, how long you think it would take, in your experience, to stop a single locomotive ?  [ an unqualified question, at what speed and in what track condition ? ] .  Witness then somehow pulls out a magic number and responds, about 90 feet.  Defense asks if witness did say that during the protest, there was a decision to move some trains on lines near the protest ?  Witness responds, eventually yes sir.  Defense shows witness exhibit C  and  D .  Defense asks witness if he knows if those trains were moving that day, while the protestors were sitting there, as they are in the picture ?  Witness answers, yes, we eventually moved this ( ? ) by BNSF 2279 , would be a yard engine.  Defense states , and that would be on exhibit D you were pointing to and your now holding exhibit C.  Witness interrupts, and states, BNSF 1403, that would be the primarily power on the M E B E E B E .  Defense asks, that train went by the protestors as they sat there, correct ?  Witness states, eventually yes, sir.  Defense asks if witness knows what time that was.  Witness answers, I don't have the exact time.  When probed to clarify, witness answers, they were still there ( still there on both ? occasions ).  Defense ask if witness has worked there since 2005, is that correct ?  Witness answers, for BNSF.  Defense asks, has the traffic of coal and oil trains increased in that time.  Prosecution objects, as to relevance .  Court over rules objection.  Witness answers, at that site, yes sir.  Defense asks, significantly ?  Witness asks for definition of " significant ".  Defense responds, two times more or greater ?  Witness answers, yes, that would be accurate. Defense, on this chart ( ? ) can you tell us where the Amtrack passenger train would be running ?  Witness, the Amtrack passenger train would come down this line here, then up the C line, would come up and this would be the passenger station, and continue towards Seattle.  Defense states that the particular line referenced is at the bottom of exhibit A, and asks, is that correct.  Witness answers yes.  Defense asks if that is a darker black line, witness responds yes, slightly.  Defense wants to know what it is actually called, asks what is it labeled ?  Witness answers, it is labeled the main we refer to it as ( rogers ? ) main.  Defense states as question the line the protestors were on, was not connected with that particular track, correct ?  Witness answers, not directly connected, no sir.  Defense has nothing further.  Court asks Ms Trung ( Hong ? ), and Defense continues.

Defense, trains are delayed every day, correct ?  Witness responds, we have various delays, yes.  Defense asks if there is any way to figure out if those five trains that were allegedly delayed, whether or not they had issues they had to deal with anyway, besides the protest ?  Witness responds,  I wouldn't have listed them as a delay because of the protest if they had another issue, the ones that i listed were the ones specifically involved with the protest.  Defense, but you don't actually make that decision as to whether there delayed ?  Witness responds, I make the decision that their not going to go through that location until it's deemed safe.  Defense continues, even though there were alternate routes where you could have moved some of those trains, for instance on the last ( ? ) ?  Witness states, so if we would have moved them by another location on the west ( ? ) once it was deemed safe to do so that could have adjusted the amount of time of the delay.  Defense asks if the reason why it was deemed safe to do so before they even, you know, got, or left or before the tri pod was dismounted, was because of the others, walking around ?  Witness answers, first, we had to make sure that everyone in that location , the Everett police, the BNSF police, that everyone was able to communicate that we were going to be maneuvering around on that location.  Witness continues, that was passed on to me in the office and then, then we informed the train crews that it was a safety ... at this moment the Defense interrupts and covers the witness audio.  Defense asks, so was it these five ( ? ) that had anything to do with your decision to move trains on the West lead ( ? ) ?  Witness asks, which five ?  Defense states these five on the tripod.  Defense further states it wasn't  actually people stuck on the tripod that was any factor in determining why the trains could move or not.  Defense expects witness to accept her drawn out statement as a question.  Witness responds, so I believe they would be, I mean we train our employees that if they find something that is unsafe or out of the ordinary, to stop ( ? )  the location.  Defense continues, I understand that but they were actually still on the track, they hadn't moved, at all, cause they were attached to the tripod, correct ?  Witness responds, to my understanding ... and again Defense interrupts, covering witness audio.  Defense then asks, OK, then, from 6 till around 2 PM, they were stuck on this tripod, just to make that clear.  Witness answers what I am guessing is an implied question, says, to my understanding ... and once again, Defense interrupts witness.  Defense, then, OK, ya  yet you were able to move trains by them at some point during this time ?  Witness answers, yes, we did.  Defense asks, and it was deemed safe because of police officers on the scene and because others walking around in the yard informed you that they weren't going to walking around there.  Witness responds, right, that would all have to be taken into consideration before train movement.  Defense then asks, so it sounds like the fact that the tripod didn't move at all had nothing to do with whether or not you moved the trains .... on another track ?  Witness asks, are you saying .... Defense interrupts, states, I know it's kind of a tough question.  Witness continues, are you saying that if the tripod was there and no one was around, would we have moved sooner ?  Defense, ya, would you have ?  Defense states, sounds like you would.  Witness responds, I couldn't answer, we would have to go and talk to people on the tripod, and make sure they weren't going to move ... Defense interrupts, says they didn't look like they were going to move .... witness continues, confusion, people talking over one another and room responses cover audio, witness finishes with something about we would have to make that determination.  Defense has one other question.  Defense asks, are you familiar at all with how many crew members have to be on oil or coal trains ?  Prosecution wakes up, objects as to relevance to trespass ?  Court asks Defense relevance.  Defense states, we are trying to show that in terms of uh, not to trespass, but towards our Defense, so for instance, you know ( who knows ? ) there's certain safety measures of how many crew members have to be on trains and I'm trying to establish that at the time it is certain policies .... something about hinting ( Defense has this annoying way of altering pitch and trailing off, with respect to volume, her long, convoluted, byzantine questions .... we are saved however, as court interrupts.  Court says, I'll allow some .... then mumbles ... and asks Defense to ask the question again.  Defense asks, on September 2nd 2014, coal and oil trains were required to have two crew members, correct.  Witness states that is correct.  Defense asks, and the reason for that is safety concerns ?  Witness answers, that could be part of it.  Defense asks, are you aware that on Sept 2nd, 2014 that at the time ( ? ) whether or not BNSF was trying to change that policy at all ?  Witness responds, I am not aware if we were attempting to change it.  Defense then states that the reason witness is not aware is that he is not in that department, correct ?  Witness answers, right, I don't write the contracts, I wouldn't be part of that deliberation between the union and the company.  Defense interrupts, so your unaware then ?   Witness continues, Ya, and mumbles something.  Defense, thank you.  Court ask remain Defense and Mr. Mazza if they have any questions, there are no further questions for this witness.  Court, clearly, this time, calls for redirect.

Prosecution asks about previous testimony regarding rerouting, how easy is that ?  Prosecution then asks, could there be other things in the yard that prevent that from happening ?  Witness answers, absolutely.  Prosecution asks, would you say that moving it ( ? ) over to the other side, ( bay side ? ) would that be easily done ?  Witness answers, no it wouldn't be, I mean, if your talking about a train that is destined for Everett and Delta and you ran it thru ( Bay side ? ) you actually have to go through Bay side, out onto the coast line, shove back thru the tunnel at Everett and back down into Delta yard it would cause more delay on the ( ? ) then.  Prosecution asks, so instead of a straight line it would be more like a curly ?  Witness answers, yah, and it would have to back up with a crew member walking ahead of that movement.  Prosecution asks, it would have to be walked that way.  Witness states, that's correct.  Prosecution asks, so that would have caused delays as well ?  Witness states, that could have caused additional delay.  Prosecution continues, now regarding in year trains, there was mention there was one near the protest, how many in yard trains do you have, I assume two ?  Witness responds, per 8 hour shift there are primarily 3 yard jobs on duty at delta.  Prosecution then asks witness to identify storage lines on unidentified exhibit, witness identifies line 1413 thru 1499 moving to the top of the page, the storage yard being referred to, that would be 1421 thru 1424.  Defense then asks, but you also do car shifting down here, as well ?  Witness responds, we do, we have done some, but primarily as used for storage, we'll also bring cars in that are going to be processed, we'll hold them there and then move them over to 1413 through 1499 .  Prosecution interrupts, and how far can these trails, er, I mean trains go along these lines.  Witness responds, 1424 is approximately 14,000 feet, end to end, and they get shorter as you get towards 1421, that's about 6,400 feet.  Prosecution asks, so just so were clear, rerouting the train, you would have had to do it in reverse, and a person, a single person would have to walk it all the way.  Witness answers, right, you would have went into Bayside, say for a train destined Delta, and gone into Bayside, it would have been a very long undertaking.  Prosecution has nothing further.

Court asks Defense if they have anything further ( by name, and mumbles names so low as to be indistinguishable ).  Defense ( ? ) asks, the rerouting you just talked about, that's all theoretical, that didn't happen that day ?  Witness answers, did not happen that day.  Defense continues, and as you said, the four lines, I think you numbered them 1421 to 1424, those are the lines in the storage yard, originally, those are used for storage and not for switching ?  Witness responds, there's a yard track, 1421 thru 1424 uh, I feel like I'm having to discuss with one of the yard masters, but ( room reacts, some commotion ) wouldn't want to deem that they were necessarily for only one specific thing.  You would want to leave them open, to do a multitude of things with them - storage or the train,  the one in the picture, or storage of cars that we would be processing ( ? ).  Defense goes on, but that day, there were no plans to use those four lines for anything but storage, correct ?  Witness answers, I can't tell you accurately at this time if the PRG ( tag ? ) was destined for one of those trains.  The rest of Defense has no further questions.  Court excuses witness.

Court directs Prosecution to call next witness.  All the pent up coughing that has been held, now erupts, making it very difficult to understand the name of next witness.  Prosecution calls Tyler ( ? ) , state mumbles last name, under coughing by someone, does NOT spell out las name.  Witness is sworn.  Name is Tyler Harvey Ostenberg .  Court makes new found instructions for witness to speak up.  Prosecution asks witness how long he has worked for BNSF ?  Witness responds, I worked there approximately, just over 4 years.  Prosecution asks, what are your duties, are you working currently at the Everett yard ?  Witness answers, I currently do not work for the railroad, I resigned December 30th of this year.  Prosecution asks, while you were there, what were your duties ?  Witness responds, switch man, conductor, brake man , switching cars in the yard and handling the paperwork for thru freight.  Prosecution continues, so you were on one of the ( ? ) cars that moves other cars.  Witness answers, the day of this incident, I was running a switch engine in the yard.  Prosecution asks what would a day on the switch engine look like ?  Witness responds, get your paperwork, go out, make your moves into the multiple different tracks that we use .  Prosecution asks, is it a riviting job ?  Witness answers, it's riviting yes, absolutely.  Prosecution asks how long would you work moving cars ?  Witness answers, we work a 7 and one half hour shift.  Prosecution continues, so for that time, your going forward, locking up and then back and forth, back and forth ?  Witness answers, yes.  Prosecution asks, do you set up the lines that go to Canada ?  Witness answers with question, set up the lines ?  Prosecution continues, do you assemble the cars for the trains that are going to Canada ?  Witness responds, yes we would build the trains going North and East and South.  Prosecution asks, that's what you would be doing during your 7 and one half hour shift ?  Witness answers, yes.  Prosecution asks was witness on duty on Sept 2nd, of 2014 ?  Witness responds, yes.  Prosecution ask if witness was on duty with Mr. Tate, Ritchie Tate, in the Delta yard ?  Witness answers yes.  Prosecution asks, and were you on duty in the switching yard and on a switch car at that time ?  Witness responds, yes, we were on a switch engine.  Prosecution asks witness what shift he was working ?  Witness responds, this would be a third shift, so it's a 11 o'clock at night ,  2300 hundred, start.  Prosecution asks, what time does it end ?  Witness responds, you would usually be going home around 7:30 in the morning.  Prosecution asks, so it's graveyard ?  Witness responds, yes.  Prosecution asks, on that day were you taking cars, setting up cars ?  Witness responds, yep, taking cars, building trains.  Prosecution asks if anything peculiar happen that day ?  Witness answers, well, ( confusing back and forth about lines and power ) and as we were coming up, last move over the Y, we got stopped by a flare, that was thrown in front of us.  Prosecution asks if witness had to initiate breaks ? Witness says yes, just a full set of independents, which is a normal stop.  Prosecution asks, what were you thinking at that time, what was going on ?  Witness answers, something was going on, somebody was trying to get us stopped so that nothing terrible happens, I guess.  Prosecution continues, did you observe anything else that morning ?  Witness answers, some people milling about the yard, didn't know what they were there for.  Prosecution asks, were they assembling anything ?  Witness continues, they were errecting a tri pod looking device, we didn't know what it was at the time, and we knew it shouldn't have been there, but ..... Prosecution interrupts, September, was it a little dark out ?  Witness answers, it was just getting a little light.  Prosecution asks, is that when you called in ?  Witness answers yes.  Prosecution comments, so you were basically just finishing your shift, ( witness interrupts, ya, this was our last move ) then asks were you able to get your train, where would you put your train ?  Witness answers, we would just park it in one of the yard tracks.  Prosecution and witness talk over each other.  Witness answers, no, we were relieved, we were coming up to our hours of service, we were relieved by the morning job ( ? ).  Prosecution asks, provided that flare had never been thrown in front of you, of that tri pod errected, you would have quit your car.  Witness answers, ya, we would of parked our engine.  Prosecution asks, at a different location ?  Witness answers yes.  Prosecution passes the witness ( first time that is clearly heard on audio ).

11:32:23  Court directs Defense ( Mr. Goldsmith ) to proceed with cross examination.

Defense ask witness if he work there for 4 years.  Witness answers yes.  Defense asks, your no longer working there ?  Witness answers yes.  Defense asks, doing something different ?  Witness responds yes.  Defense asks, doing something different ?  Witness answers yes.  Defense asks, what are you doing ?  Witness answers, I work in construction.  Defense asks, on that particular morning, someone threw a flare, out on the tracks, is that correct ?  Witness responds, yes.  Defense ask, it's like a road flare, people might use to changing a tire or something ?  Witness answers yes.  Defense asks if the flare thrown threatened witness or the engine in any way ?  Witness says no.  Defense asks, it was done in a safe manner ?  Witness answers yes.  Defense asks witness if his first thoughts, or his associates first thoughts, were that this was some kind of test for them ?  Witness responds, we did think it was a test.  Defense asks, so a flare thrown on the tracks is something that is used to commonly stop a train, especially in the dark ?  Witness answers yes.  Defense ask that at no time did any of the protestors approach the locomotive the witness was on. Witness answers no ( did not approach ).  Defense asks, how long did it take you to stop your ... , you were driving a single car, locomotive ?  Witness answers, yes, the foreman was driving the car, he was in charge of the locomotive, I was a helper, those things, they stop relatively quick.  Defense, again, so how long did it take you to stop, in time ?  witness answers, I'm going to say , about 15 seconds.  Defense asks, and about how far did you travel ?  Witness answers, from the time we saw the flare, till we stopped, I'm gonna guess ..... just an estimate ..... 15 or 20 yards, or so.  Defense, and when you stopped, how close were you to the protestors and the tri pod and all that ?  Witness responds, they were still quite a ways away.  Defense asks, how far away ?  Witness responds, I would say somewhere around  .... I'm going to go with around 70 to 100 yard range ... maybe a little closer.  Defense continues, now do you know what track number you were on ?  Witness responds, I couldn't tell you the exact track number, I know that it was the leg of the Y that goes from Delta yard to bridge ( ? ) 37.  Defense shows witness exhibit A, and asks, if witness can figure out where his locomotive was on the exhibit, and to show the court.  Witness points, says here's the Y, our locomotive was approximately there.  Defense asks witness to mark the exhibit with an X where his has indicated.  Witness does this.  Defense asks, now that particular position, marked with an X is not on the same track as where the tri pod is, is that correct ?  [ By now, the exhibit is marked with more than one X, however the court does not address the possible confusion in any way, such as asking Defense to have witness use a different letter for his mark ]  Witness answers, according to that ( ? ) mark, yes.  Defense asks again, and in your estimate, that is somewhere in the vacinity of a 100 yards away ?  Witness answers yes.  Witness tries to add a comment about scale, Defense keeps talking and the two are talking over each other.  Court takes no action to stop this sort of confusion.  Confusion and back and forth continue, witness answers yes to something.  Defense continues, about a 100 yards ?  Again, witness says yes.  Defense thanks witness.  Defense then asks, if after he stopped, did any protestors come up to him and in any way disturb him.  Witness says no.  Defense asks if any of the protestors were a threat to him in any way ?  Witness answers no.  Defense asks if witness stayed in his cab then, you didn't come down and start talking to people ?  Witness responds, we did not come down, we were out on the platform at the time, when stopped, but we did move into the cab so we could sit down.  Defense asks, so you had no interaction with the protestors then ?  Witness answers, no.  Defense asks, could you hear what they were saying ?  Witness answers no.  Defense asks, so no one approached you with a petition or anything ?  Witness responds, no, as Prosecution wakes up and points out to court that the question has been asked.  Court asks if the state is making an objection, state responds yes, court sustains the objection.  Defense asks if witness resigned from BNSF for any reason that was not personal ?  Witness responds no.  Court asks other Defense attorneys if they have anything further, also asks Mazza.  Nothing further from Defense.

Court asks if anything further, Prosecution asks witness how much longer he worked for BNSF after this incident ?  Witness answers, from September 2nd till I believe it was December 30th or 29th, it was somewhere around there.  Prosecution asks, did you ever find out that the flare, thrown under the front of your car, was a test ?  Witness answers, it was not a test.  At this point the witness is excused by the court.  Court asks if Prosecution has any other witnesses, state responds, no.  Court announces that Prosecution has rested.  Court asks if Defense is prepared to call their first witness.  Unidentified Defense announces that Mazza is going to take the stand and ( ? ) the record by Mr. Joyce, as the court has permitted.  Court, Mr. Mazza - then court interrupts as an unidentified voice brings up some matter regarding a motion.  The court ( affirms ? ) and continues with the swear in of Mazza.

Defense ( Joyce ) asks defendant to tell him about his background and area of publishing.  defendant responds, I have worked professionally on climate change since 1998, I wrote about it for a number of years before, I helped found a major climate change organization, called climate solutions where I served as research director till the end of 2013.  I've written a book - stormy weather, 101 solutions to global climate change, coauthored that, and written a number of papers, in um, in .... Defense interrupts, can you tell us something about the causes of climate change ?  Climate change is caused ... ah .... we are almost totally certain .... ah ... by fossil fuel pollution, by , by the carbon emissions from us burning coal, oil and natural gas.  These release really powerful ah gasses, that are known as green house gasses, and just, and just in small quantities they trap solar heat - they trap the heat that's coming from the sun and, and accumulate it in the atmosphere and in small amounts their a good thing.  Defendant is interrupted.  Prosecution unidentified, interrupts, ask court if he can address court outside the presence of the jury.  Court asks if there is an objection.  Prosecution continues, I wish to address the jury, er, outside the presence of the jury.  It is not clear WHO state wishes to address.  Court starts to dismiss the jury and then asks if this an appropriate time to start the lunch hour.  All unidentified voices do not object, and court announces that there will be a recess for one hour, a lunch recess.  Court adds, will be in recess until 1 o'clock, and reminds jury not to discuss, ad nausea.

11:41:02 - Jury leaves, court then asks Prosecution to continue with objection.

Prosecution continues, this is ( ? ), it is the state's understanding that the court made it patently clear there was to be no flash photography.  Court responds, that is correct, talking over each other, did you notice ?  Prosecution answers, yes, there was flash photography.  Court asks out loud, who has the flash photography in here ?  Court directs someone to stand up.  Court asks, what is your name ?  Someone responds ,  Les Barrinson ( ? ).  Court asks, were you hear when I instructed you earlier - at this point the person starts talking as court talks, making for confused audio.  Person continues, mumbles, and is off microphone.  Court asks, is it a digital camera - bring it up here, I want to see what ( ? ) you took.  Court says something about putting something on something, then says please put the photo on the screen.  The court announces it is observing the photographs on this person's camera.  There is at least one photograph that has the jurors depicted.  Court announces there will be a brief break, and then be back for contempt proceedings - at 11:43:18 , court announces, be back in 5 minutes.


Court reconvenes, asks if there is anything further.  Unidentified ( Prosecution ? ) responds, your honor, you have already seen the photo, I have already observed the photo, it's interesting, because we discussed this just before the ... just after ( ? ) the last break, with regards to photos being taken, of the jurors.  I was here yesterday when the judge reminded the entire gallery as well as all the media, that no photos, or any video ( cellphone goes off ) be taken of any juror and now we have an example of one going on social media and then while I was resting, defendant comes up and I apologize, has nothing to do with defendant's testimony or anything, there was a flash in the back ( ? ) was taking another photo and low and behold, I've seen the photo and ( mumble ? ).  So, with regards to the contempt proceeding, I know that there are a few things that you ( court ) can do, your honor, obviously my biggest concern is preserving this case, having it continue as it's going and make sure that these jurors aren't being intimidated.  And, when the people have already been told not to take photos of them and they continue to take photos of them I'm worried about, what the effect is going to be on them, the jury, that's one concern.  Number two, is just kind of monotonus, something ( ? ) about judge.  With regards to your recourse, I'm familiar with contempt proceedings, you could take him into custody, you could fine him, you could remove him from the court room, and you could remove his ( ? ).  All defer to the court whether you would like to take him into custody, state is not going to make that recommendation, however I would ask that he be removed from the court room ( loud cough covers audio ) something about your direction.  Court thanks state, asks the individual to come forward.  Asks him to spell his name. Spelling is :  LES  B ( ? ) EREMSON ( ? ) .  Court addresses Mr. Beremson, I am ... I have repeatedly throughout this trial instructed the gallery and everyone in the courtroom not to photograph the jury and not to use flash photography.  I have evidence before me that you have violated that order.  However, I don't have any evidence that you were physically present at the time that I gave that order ( most recently ? ).  you may ( ? ) have the opportunity to mitigate what appears to be a clear violation of the courts order by telling me what explanation you have for this misconduct.  Would you like to telll me ?  At this point, a Defense attorney interrupts, name is Cathy Trueblood ( ? ) , says something about right to an attorney, says she will represent him, if the court ( ? ), she is interrupted by court, unclear, Beremson mumbles something.  Pause with lots of whispering takes place, then court announces, at this time, court is making a  preliminary finding that Mr. Beremson is in contempt of court.  As a result, court will set this on for a hearing to determine what sanctions, if any, should be imposed.  Court advises Beremson that he has the right to have an attorney at that hearing, if he so wishes, and court is not appointing a public defender, something about screening for public defender services, if he actually qualifies.  Court announces that the hearing will be tomorrow morning at 8:30 AM ( Wednesday, day 3 of trial ).  Court advises him he is required to appear on that day, asks him what is his birthday.  Beremson replies 11 - 26 - 52 .Court is also requesting, but not ordering that the state has law enforcement respond to collect evidence, available to the court at the hearing AND/OR  take over this process by filing contempt of court charges against Mr. Beremson, in which case, I will be removed as I am a witness to these proceedings.  The state ( whispering confuses audio ) should consult RCW 7-21 for appropriate methods for doing so.  Court addresses Mr. Baremson, rather interrupts, asks, if the state has law enforcement present, state interrupts, says if court doesn't mind, state will aks to have ( ? ) taken into possession.  Court thanks state. Court continues, this is an unusual circumstance,   and so this will give us all until 8:30 AM ( again, whispering confuses audio ) tomorrow morning to decide how to proceed.  Court says it sees that in open court that a deputy has taken possession of the camera, and we will be in court tomorrow at 8:30 AM to determine how to proceed at that point.  Court asks if Beremson understands he has an obligation to appear tomorrow at 8:30.  Response is yes sir.  Court advises that if individual would like to seek services from the public defenders office, that are open until 4 PM.  Interruption, female voice over the court, mumbles something, court continues, will see you tomorrow, and in the mean, you are not permitted to take any photography, do you understand that ?  He responds, absolutely.

12:08:02 Court continues.

Court states, I also will note, perhaps I should have done this earlier,  that the way this court room is arranged, it would be very difficult for anyone in the gallery to take a photograph that doesn't include the jury, when they are in the room.  Court cautions all of you that you must be very careful in the foreground or the background, like I have repeatedly ) ? ) said, jurrors are not depicted.  I have been very generous, I feel, in allowing photography and other media to cover this trial that there is benefit to the public that this be as public as possible but we must protect the identity of the seven people who have dedicated this week to administering justice in this court. So, just a common decency, please follow my court order, or there will be repercussions.  It is not this courts desire to find members of the public in contempt, but in order to protect the integrity of this process, this courtroom, I will   Court announces proceedings in recess until one o'clock unless any parties have anything else.  Prosecution wakes up, announces to court that he would like the opportunity to state to the jury when they  come back in, that he did object to Mr. Mazzas testimony.  Defense ( ? ) without identifying who is speaking, agrees, wants the jury ( again, chimes, cellphone ? go off )  to understand, court to instruct jury,  that the object had nothing to do with any of the defendants or lawyers in this case, the interruption that occurred.  Court says that's fine, i'll let you ( ? ) make a brief statement or draft a statement I'll read to the jury.  Court notes that frankly, I find that it's necessary at this point to instruct the jurors that they have been photographed and that the court is taking appropriate action but if they are communicated with in any way from this point to immediately notify court staff.  Court asks if there is any objection from anyone here that I notify jurors of this.  Unidentified speaks up ( Defense ? )  combination of whispering and mumbling make the male's statement mostly unintelligible.  Court states that the image he just observed on the camera had seven people in it.  Court continues, something about posting, and that court feels compelled, as a matter of common decency ( how many times has court now, made this statement ? ) to notify this jury that it is possible that their photograph has been distributed publicly.  Unidentified, ( Prosecution ? ) asks to address that point.  Asks that court hold off on that point until ( ? ) speaks with ( ? ) he's going to know a little bit more about ( ? ) court interrupts, says, I'll let anyone argue anything they like before we bring the jury in.  Everyone pats everyone on the back about everything at this point. No one has anything further  - and court is in recess.

12:11:00 PM, court is in recess, for lunch

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