NEWPORT CITY – Deputy State’s Attorney Sarah Baker wants to stop Lowell wind protesters from using a dispute over who owns the Lowell ridgeline as a defense in their trespassing case.
Baker filed a motion Friday in Orleans Superior Court – Criminal Division asking Judge Robert P. Gerety Jr. to ban the defense from bringing up Don and Shirley Nelson’s lawsuit. The Nelsons claim that they own part of the ridgeline where Green Mountain Power is constructing its wind project.
The protesters’s attorney wants to bring the Nelsons – and even the judge hearing the civil lawsuit – into the criminal courtroom to testify as part of the defense, Baker said.
The Nelsons are suing GMP in civil court in a case that probably won’t get resolved until sometime next year – well after the trials tentatively scheduled for this summer of six protesters charged with trespassing last fall at the wind site.
Baker’s motion reveals how defense attorney Kristina Michelsen wants to defend her clients, who include Dr. Ron Holland of Irasburg, an emergency doctor at North Country Hospital, and Sterling College professor Anne Morse of Craftsbury Common. She also is defending Ryan Gillard of Plainsfield, Suzanna Jones of Walden and David Rodgers of Craftsbury. Protester Eric Wallace–Senft of Woodbury is defending himself.
The group, who call themselves the “Lowell Six,” blockaded the crane path on the Lowell ridgeline on Dec. 5 and stopped work at the wind construction site for several hours before police stopped them. They were arrested and charged with misdemeanor trespassing and vowed to fight the charges at trial rather than accept an offer from the prosecution of Diversion and a clean record.
Also arrested was The Chronicle Publisher Christopher Braithwaite. His trial will be separate from the protesters, since he is arguing that as a reporter he should have been able to cover the protest on private property without prior permission from GMP.
All the protesters, except Morse, were in court Friday afternoon. Gerety said that he would probably roll the trials of Michelsen’s clients into one. But he has yet to decide whether Wallace–Senft’s trial should be also included or conducted separately.
Gerety asked Baker to explain her motion to keep the lawsuit over the wind site property out of the criminal trials.
Baker said that Trip Wileman, the owner of the property on the ridgeline where the protesters were arrested, has a deed to prove he owns it. And GMP has a lease with Wileman to prove it has a right to say who can be on the property, she said.
Plus, she said, Judge Martin Maley in Orleans Superior Court – Civil Division gave GMP a preliminary injunction to stop protesters from hindering blasting on the wind site.
“Defendants [in the criminal case] have given notice that among other witnesses they plan to call Donald Nelson, owner of the adjacent property and litigant in the GMP vs. Donald and Shirley Nelson case, the Honorable Judge Martin Maley, presiding judge in the matter … and Paul Hannan, a licensed surveyor,” Baker wrote in her motion.
The defense also wants to to use testimony from the civil hearings, Baker wrote.
“A criminal trespass to land case is not the appropriate forum to litigate Nelson’s claim that they own a portion of the land leased by GMP. Nor it is the appropriate forum for the issue of wind development,” she wrote.
“On Dec. 5, 2011, at the time of the trespasses, GMP was physically in possession of the property and all trespassers were aware of the current litigation and existence of the preliminary injunction,” Baker wrote.
She asked the judge to exclude witnesses, testimony and evidence of the civil case.
“To allow such evidence would only cause confusion of the issues and mislead the jury and waste time,” she wrote.
Even if the civil court decides in the future that the Nelsons own the disputed property, that wouldn’t change who had possession at the time of the alleged trespassing, she concluded.
Baker asked the judge to exclude this evidence and testimony. If not, then Baker asked him to put off the trespassing trials “until there is a final order issued by the civil court regarding the ownership of the land, as the civil court is the appropriate court to decide that issue.”
Michelsen said she needed time to react to the motion. But she did say that the state has to prove beyond a reasonable doubt that GMP had possession of the property in order to prove that trespassing occurred.
Gerety said he would make a decision promptly once he receives Michelsen’s response.
He spent some time Friday explaining the court process to Wallace–Senft, who said he cannot afford an attorney and couldn’t afford to have a trial in June or July when he is busiest with his carpentry work.
Gerety said he would consider postponing Wallace–Senft’s trial until later.
And he warned Wallace–Senft that any comments he makes about the charge in court or to the state’s attorney as he acts as his own attorney could and probably would be used against him at trial.
The case for the other five protesters is moving ahead, with a pre–trial hearings and jury selection scheduled for June 20 and 21.
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