NEWPORT CITY – Five of the “Lowell Six” protesters lost one and won one in Judge Robert Gerety’s decisions on motions.
The Lowell wind development protesters will be permitted to call witnesses and use court orders in the civil property dispute between Green Mountain Power (GMP) and Don and Shirley Nelson in their criminal trespass trials, but Judge Robert Gerety Jr. denied their motion to dismiss the charges.
In orders issued Monday in Orleans Superior Court-Criminal Division, Gerety also denied the state’s request to postpone the criminal trials of the defendants charged with trespassing until after the civil case is resolved.
Kristina Michelsen – the attorney defending Dr. Ron Holland of Irasburg, Anne Morse of Craftsbury Common, Ryan Gillard of Plainsfield, Suzanna Jones of Walden, and David Rodgers of Craftsbury – and Deputy State’s Attorney Sarah Baker have until May 30 to brief the court on other matters.
Defendant Eric Wallace-Senft of Woodbury is defending himself. Chronicle publisher Chris Braithwaite, who is represented by attorney Phil White, is arguing that as a reporter he should have been able to cover the protest on private property without GMP’s permission.
The Lowell Six blockaded a crane path Dec. 5 and halted work there for several hours until being arrested by Orleans County Sheriff’s deputies.
Gerety asked for briefs on whether the protesters’ purported reason for being on land the state says GMP controlled at the time of the offense in December was relevant or material to the criminal action as well as on the admissibility of civil court orders.
The parties, including witnesses, are not permitted to mention those issues in front of a jury without further court order, Gerety wrote.
GMP is leasing land for which Trip Wileman holds a deed. The Nelsons claim part of the land – where the protesters were arrested – actually belongs to them. Judge Martin Maley issued a preliminary injunction to stop protesters from hindering blasting at the site last November.
In her motion asking the court to prevent the defense from mentioning the civil suit, Baker wrote, “To allow such evidence would only cause confusion of the issues and mislead the jury and waste time.”
Gerety agreed with Baker on one point. “The State is correct, the Criminal Division is not the place to litigate the private civil dispute between GMP and Nelson,” he wrote.
That said, however, Gerety wrote that defendants in criminal cases have a fundamental constitutional right to present evidence on each element of an alleged crime.
“The Court understands that the Defendants’ evidence will be narrowly targeted to the question of the location of the boundary which, based on the Defendants’ representations regarding the location of the defendants and the location of the disputed boundary lines, is relevant to the question of whether the particular land where Defendants were located was in the lawful possession of GMP,” Gerety wrote.
In Michelsen’s motion to dismiss, which asks the court to issue acquittal judgments, she wrote that pending civil litigation cannot function to relieve the state of its obligation to prove the elements of the alleged crime beyond a reasonable doubt.
She plans to call Don Nelson, “the true owner of the subject property,” surveryor Paul Hannan, and Judge Maley. Testimony will show that the property line is “not legally correct,” Michelsen wrote.
“Whether this evidence should be believed is for the jury to decide,” she wrote.
In her motion to exclude the testimony and evidence, Baker admits that there is reasonable doubt as to the ownership of the property, Michelsen wrote.
But Gerety disagreed. He wrote that the state’s acknowledgement of the civil dispute does not establish reasonable doubt.
The five cases, which will most likely be decided in one trial, are set for pre-trial conferences and jury selection June 20 and 21.
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