REFLECTING ON THE OUTCOME OF Pilgrim-14 – End of a round

What happened?  Weren’t the Pilgrim-14 defendants fully prepared for trial and in a flash their case was dismissed?  Why?

What, if anything, ought we make of the government’s decision not to pursue the case?

And since the government was able to dismiss the case without the Court’s approval, what if anything do we make of the DA asking the Judge to approve the prosecution’s Motion to Dismiss, which it did over the Defendants’ vigorous opposition?

Doesn’t the Prosecutor represent the public?  Isn’t it in the government’s interest to see that justice is done?  Isn’t the Plymouth County District Attorney’s Office mandated to address not just criminal occurrences, but also crime prevention, and proactive engagement in addressing the social, economic, and health issues facing the citizens of Plymouth County?  Their website says they are.

Doesn’t a profound risk to public safety such as that presented by the Pilgrim Nuclear Power Plant require an affirmative response from the Prosecutor’s office?

Weren’t the P-14 faced with a clear and imminent danger, not a danger that is debatable or speculative?  Didn’t the defendants try to reduce or eliminate that danger in the same way a person who climbs over a fence to get an infant away from a snarling dog does, even if there is a no trespassing sign?

And given that there seemed to be no legal alternative that would be effective in reducing or eliminating the danger presented by the ongoing snarling nuclear power plant, the P-14 did enter upon Entergy property, hoping to deliver a letter of protest and concern to Entergy Corporation’s corporate hierarchy, knowing their arrest was likely, but choosing this course of action in the hope it would raise public awareness of the imminent danger, sort of like Paul Revere, or lunch counter sit ins, or refusing to move to the back of the bus like Rosa Parks.  Non-violent civil resistance seemed called for and the P-14ers were willing to take the risk of their jailing in the hopes a jury of their peers would find the trespass they had been charged with would be trumped by the recognition of the need to address and abate a real danger.  And if not, they’d be found guilty.  So be it.  (Although under Massachusetts criminal law before a defendant can be found guilty of a trespass when the defense of the necessity to respond to danger has been raised, the Commonwealth must prove the defendant did not act out of necessity, and must prove that fact beyond a reasonable doubt.  Which certainly makes a not guilty verdict at least a possibility.)

And, of course, had the matter proceeded to trial the defendants would have had no trouble offering expert testimony of imminent danger. After all the Pilgrim nuclear reactor does pose a substantial current radiological risk to the public, compounded by the plant’s use of high-density storage containers for spent-fuel rods, the original design of which was for 880 assemblies, and now contains well over 3,000 assemblies. Not to mention that in the event of a storage pool fire damages could easily exceed a trillion dollars in economic losses and clean up costs, tens of thousands of radiation induced cancers, and contamination of hundreds of miles of shoreline and coastal property downwind of the reactor.

And the defense would have also called Cape Cod’s elected representative and ally in the Massachusetts legislature, Sarah Peake, who would have testified that no matter how many formal avenues of redress she and her staff, and the staff of the Executive Office of the Commonwealth of MA, attempted to utilize to control the avaricious behavior of the Louisiana based corporation that runs Pilgrim and is threatening the lives and safety of the citizens of Eastern Massachusetts, even our elected government representatives were profoundly unsuccessful and frustrated in getting either Entergy or the NRC to respond adequately to the grave concerns of the legislature, the Attorney General of the Commonwealth, and the Governor of the Commonwealth.  This in the face of a multitude of well documented safety breaches, inadequate safety practices, and dire risk of danger at the PNPS  … and that absent requested assurances the Attorney General’s office was not able to recommend relicensing of the plant, and, indeed, opposed it.

But the P-14 never got to put on this testimony because their case was dismissed on motion of the Commonwealth.  And we are now back to asking, why.

Understand, the Commonwealth’s reasons for dismissal were legitimate and real in its eyes, notwithstanding the fact they could have made different choices had they wanted to … or had different priorities.  But they didn’t.  And most of all, in addition to the serious amount of time the trial of such a case would have consumed, the prosecutor’s office just really didn’t want to engage in what it perceived to be a low level political drama.  Who needs it the prosecutor asked himself and his supervisors.  Case dismissed.  What does it matter?

The Judge is in a somewhat similar, but also significantly different position.  She also cares about the amount of time and court resources trial of a case like P-14 will take, but she is not of the executive branch of government like the prosecutor, she is of the independent judiciary, whose oath calls upon her to administer justice with faithful impartiality in the discharge and performance of all the duties incumbent upon good judges under the Constitution and laws of the United States and the Commonwealth of Massachusetts.  And the P-14 judge agreed with the prosecutor’s view and didn’t feel warranted in allocating the court time and resources required to try such low level totally not dangerous or truly criminal elderly persons who acknowledged their intention to use the Court to promote a cause … something any court is very circumspect about even being perceived as doing, whatever the issue, abortion clinic protests, munitions manufacturer protesters, folks who don’t want to send their kids to school.  The last thing any court needs is to be involved in a political trial that by its very nature will evoke criticism and perhaps the appearance of bias in even granting the defendants such a forum/soapbox.

And it is absolutely true that the defendants wanted a soapbox, wanted to use the court as their soapbox for educating and mobilizing the community.  And the Court didn’t want to be used that way.  And in that sense made a rational decision.  Judge Hand examined her thoughts and feelings about the safety of the PNPS and concluded – whether she saw the plant as a real threat or no threat at all – that her personal views regarding the plant had nothing to do with the decision she was required to make.  And she made it.  Good judges really want to be good judges.  And from everything we’ve seen Judge Hand does her job superbly well.

Yet it bothers the defendants immensely that the law is actually being applied to deprive them of a tool that might help in shutting down the Plant.  And they just can’t bear countenancing the greed which drives the PNPS to produce sixty years of electricity and leave Cape Cod and the communities that surround the bay with thousands upon thousands of pounds of radioactive trash which will “burn” for half a million years.  The plant is simply too big a real risk to the lives and safety of millions of people, not to mention sea creatures, birds, plants and trees.
And whether the defendants intended to use the trial to promote their political agenda is and should be of no consequence to the prosecution or to the court think the defendants, and the justice system’s failure to more fully hear their cries represents evidence if not of bias and prejudice, then at least of a misplaced understanding of the reality of the immanent, actual, and ongoing harm the plant is doing, today, to all of our communities.

And so the struggle must continue.  And well over 60 people – defendants and their supporters – leave the court after dismissal, drive to the plant, and march on the monster’s guarded gate, whereupon three of the original fourteen protesters and two others are arrested, and brought to jail, and appear in court, and are given new court dates, and la lucha continua.  And the effort to wrest themselves free of the demon’s hold continua.  And future acts of civil resistance and protest are inevitable.

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