February 1, 2012
Vermont

Judge wants more data in trespass case

by Paul Lefebvre, the Chronicle, 1 February 2012

NEWPORT – A Superior Court judge has asked for more research before deciding on whether he should dismiss an unlawful trespass charge brought against a reporter who refused to leave a wind protest he was covering on private property.

“I want to understand the law a little better than I do right now,” advised Judge Robert Gerety Jr., following oral arguments on Thursday, January 26, here in Orleans County Superior Court.

The judge gave defense attorney Philip White of Newport until February 10 to submit additional written argument. The state will have ten days to respond.

The issue facing the judge is one of balancing the rights of private property with the rights of a free press. What makes the distinction doubly difficult is sorting out the right of a free press to cover a police action by the government on private property that has been posted.

Chronicle publisher and reporter Chris Braithwaite, 67, was arrested December 5 and charged with unlawful trespass for allegedly twice refusing a police request to leave an area on Lowell Mountain where a protest was underway.

Mr. Braithwaite has maintained he was only on the property to cover a demonstration in which protesters – the Lowell Six – willingly subjected themselves to arrest while trying to block construction vehicles at the site.

Both their arrest and Mr. Braithwaite’s came at the request of Green Mountain Power, the utility company that is building an industrial wind farm on the mountain, consisting of 21 turbines.

Mr. Braithwaite has sought to distance himself from the protesters by asserting that he had gone to the mountain only to do his job – a job that his attorney says is protected by constitutional safeguards.

Deputy State’s Attorney Sarah Baker told the court, however, there is no legal justification for the distinction Mr. Braithwaite is claiming. As a reporter, she argued, he had no right to remain on the posted land once ordered to leave.

For the judge to rule otherwise, Ms. Baker argued, “would create a right for a reporter” that doesn’t exist. She said the defense argument had no merit and lacks legal precedent.

Reporters must comply with the law like any other citizen, she said.

The courtroom was crowded for the hearing, which lasted about an hour. Among the crowd were people who earlier had carried signs outside the courthouse, supporting Mr. Braithwaite and two other defendants who were also asking the court, in a separate hearing that morning, to dismiss criminal charges arising out of their presence on Lowell Mountain. (See accompanying story.)

But, beyond a courtroom full of sympathetic supporters, the Lowell wind project and the controversy it has generated was one of the critical points in the defense argument.

Mr. Braithwaite was not going into someone’s home to cover a police action, his attorney explained at one point. He was rather covering the latest chapter in an ongoing controversial story that was unfolding on a mountainside.

And because of that, he deserved as a reporter to be excluded from arrest.

Mr. White, who is suffering with a broken shoulder from a skiing accident, characterized the crime of unlawful trespass as a “vehicle for vindicating a property owner’s interest.”

However, he argued that GMP’s property interest in the present case has to be balanced against the press’ right to cover a story that has ongoing public interest. And he added that only by having a reporter or “an objective observer at the scene” could the public interests be served.

Although GMP authorized the arrest, Mr. White argued that the company has no interest in trying to prevent the press from covering its wind project. He noted that soon after the arrest, GMP invited Mr. Braithwaite back onto the property so he might continue the Chronicle’s coverage.

An invitation that was not extended to the Lowell Six, he noted.

When pressed by the judge, Mr. White conceded he could find no legal ruling that gives exceptions to reporters gathering news on an “official government action.”

Instead, he told the judge: “We are exploring new ground here.”

That could be a step that the judge does not wish to take alone.

He repeatedly expressed surprise that no Vermont court or any other in the country had ruled on the argument that the defense was pursuing.

And so far, he added, he had seen nothing in case law to support the exceptions the defense was advocating.

Prosecutor Baker may have had the judge’s reservations in mind when she warned during her arguments that the defense theory would set “a dangerous precedent.”

Nor, she said, is there any ruling that says the press can trespass on private property because its interest is greater than that of the property owner.

As a reporter, Mr. Braithwaite had other options he could have pursued rather than remaining on the property after police ordered him to leave, Ms. Baker argued. She suggested he could have interviewed both the protesters and GMP after the demonstration had ended.

While the defense and the prosecution locked horns on whether the press has exceptions to a trespass law, the defense also suggested the charge could be dismissed in the interest of justice.

“What rights are really being vindicated here?” asked Mr. White, after noting the property owner had invited his client to return to the mountain.

Mr. White argued that GMP had no interest in seeing Mr. Braithwaite prosecuted, and that his presence on the mountain had not caused any property damage.

Ms. Baker conceded that GMP had advised it would not oppose a decision to drop the case if it were placing a burden on the prosecutor’s resources.

She argued, however, that the company had a safety interest in seeing the case go forward. At the time the defendant was arrested, she noted, Mr. Braithwaite was in a construction zone where personal safety was a concern.

Mr. White called the safety issue a “red herring,” and argued that at no time did GMP warn his client the site was unsafe or hand him a hard hat.

As both sides sparred over the safety issue, Judge Gerety noted that in being asked to throw the case out in the interest of justice, he was being asked to interfere with the state attorney’s decision to prosecute the case.

After each side has filed an additional brief, the judge will issue a written ruling on the defense motion to dismiss.

URL to article:  https://www.wind-watch.org/news/2012/02/01/judge-wants-more-data-in-trespass-case/