Judge denies competing harms defense to couple charged in Auburn train protest

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AUBURN — Two protesters who said they sat on railroad tracks last year in an effort to stop an approaching train carrying dangerous crude oil won’t be allowed to argue at trial that their actions were justified because those actions would have prevented a more serious harm from occurring.

Justice Joyce Wheeler wrote in a nine-page decision this week that Jessie Dowling of Unity and Douglas Bowen Jr. of Porter are barred from using a so-called “competing harms” defense.

The two had argued at a May hearing in Androscoggin County Superior Court that they considered the act of criminal trespass to be of lesser harm than allowing a train hauling explosive cargo to pass through an urban area.

County prosecutors had filed a motion aimed at blocking that defense tactic.

Wheeler wrote that the defendants failed to show the four elements needed to successfully argue that defense at trial.

The defendants had testified that they feared another explosion in Auburn similar to that which occurred at Lac-Megantic, Quebec, in July 2013. They said they didn’t have time to pursue legal avenues to stop the train from passing through Auburn.

Although they believed that would create a risk of harm to people there, the two defendants were required to show “as fact that such physical harm is imminently threatened,” Wheeler wrote in her court order.

They were unable to show that because “their action was weeks in planning and they had no idea whether the train was even in Maine at the time of their action,” Wheeler wrote.

Bowen had testified that had he “actually believed there was an imminent threat, he would have gone to police and rescue, which he did not do, thereby undermining his claim of an imminent threat,” Wheeler wrote.

Dowling had said in court that she believed there was a high probability that the train would explode that day, but she didn’t call police or rescue, “undermining her concern of catastrophic danger,” Wheeler wrote.

The two defendants “failed to demonstrate that there were no other alternatives” to sitting on the railroad tracks, Wheeler wrote.

The case is expected to be put on the next trial list.

Roughly 70 protesters demonstrated outside the Androscoggin County Courthouse last month before and during the hearing.

Dowling and Bowen were arrested Aug. 28, 2013, by local police when they refused to leave the railroad tracks on which they sat.

With the competing harms defense no longer an option, prosecutors will be tasked at trial with proving beyond a reasonable doubt that the defendants trespassed criminally.

Bowen had testified that he had been told the train was traveling through Auburn on its way to Canada from the Midwest and his group had exhausted all legal means to stop it.

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