A new line of defense
The attorneys for Tim DeChristopher, the University of Utah student who made bogus bids at a BLM drilling-rights auction last year, have come up with a new line of defense: selective prosecution.
DeChristopher is charged with such federal felonies as interfering with a government auction and making a false representation. If convicted, he could get up to 10 years in prison.
DeChristopher had earlier proposed a "necessity defense" based on preventing global warming by stopping some drilling, but that was rejected by federal judge Dee Benson.
What's selective prosecution? Suppose you're among a crowd of people jaywalking. The cop arrests only you. You might have a "selective prosecution" defense, especially if you can show you were singled out.
According to paperwork filed by the federal prosecutors in a recent pre-trial conference (the trial is currently scheduled for March 15-17), there have been at least 25 cases where someone bid at a BLM mineral-rights auction, and then failed to pay. And not one of them was ever charged with submitting a fraudulent bid.
So why single out DeChristopher? The prosecution might argue that the others at least intended to pay, whereas DeChristopher had no intention of coming up with the $1.7 million to cover his successful bids..
DeChristopher might then point out that, after the action, he began to raise money on the Internet, thus showing intention to pay, although the government refused to accept any of that money.
Further, another federal judge later found that many of the parcels offered for auction, which were near national parks and monuments, could not be legally leased under federal law. So if the auction contained bogus parcels in the first place, how could DeChristopher be guilty of interfering with a legitimate government process?
This makes a lot more sense than the "necessity defense," and one might hope that, at the very least, it will inspire the BLM to prosecute all successful bidders who can't come up with the cash at closing time. What's sauce for the goose is sauce for the gander, and what's law for a college student should be law for an exploration company.