June 3, 2012
Vermont

State’s attorney: don’t put big wind on trial

Robin Smith, Staff Writer, The Orleans Record | orleanscountyrecord.com 2 June 2012

NEWPORT CITY – The state is trying to stop six Lowell wind protesters from putting “big wind” and the right to protest on trial.

The “Lowell Six” are expected to go to trial this month – or next – on charges that they trespassed Dec. 5, 2011 on the Lowell mountain land leased by Green Mountain Power for the 21-turbines. They successfully blockaded construction on the Lowell wind site for several hours before they were arrested.

They want to argue, at trial, that they were on disputed land, which is claimed by both landowner Trip Wileman, who has leased it to GMP, and by neighbor Don and Shirley Nelson of Lowell. Lawsuits and counter suits over the boundary are in civil court, headed for trial next year.

Sarah Baker, deputy state’s attorney in Orleans County, said in a brief filed this week in Orleans Superior Court – Criminal Division, that the protesters’ reasons for being on the land leased by GMP should not be admitted in court.

“If the jury is allowed to hear testimony regarding the reason for the defendants’ presence on the land, either side could face unfair prejudice because of people’s positions on wind power, civil disobedience, (and) right to protest,” Baker wrote.

“This will also confuse the issues on the case and make the matter about wind and protesting rather than a criminal trespass. The true disputed issues in this criminal case are the lawful ownership of the property at the time of the arrest and the location of the border,” she wrote.

She also wrote that “big wind” protesters have no more right to protest on private property than those who protested in the 1970s at the Vermont Yankee nuclear power plant. She cited a Vermont Supreme Court ruling that said concern over nuclear power isn’t enough of a reason to trespass.

Baker filed her motion at the request of Judge Robert P. Gerety Jr., who has told Baker and defense attorney Kristina Michelsen not to bring up the reason the six defendants were on the ridgeline or any details about the civil trial before jurors until he makes a decision at trial about whether it is admissible.

Gerety said in a May order that Baker has a well-founded concern that a criminal trial is no place to resolve a property line dispute.

But he said the state has to prove that the defendants were on property where they were not allowed, in order to win the argument that they were trespassing. The defendants, he wrote, have the right to defend themselves with evidence on the elements of the charge, including who owns the land.

The protesters have said they want their day in court to argue their case against the Lowell wind project.

Michelsen is representing all six defendants: Dr. Ron Holland, 67, of Irasburg, an emergency doctor at North Country Hospital in Newport City; Anne Morse, 48, of Craftsbury Common, a professor at Sterling College; mason and write David Rodgers, 69, of Craftsbury; mentor Ryan Gillard, 23, of Plainfield; farmer Suzanna Jones, 50, of Walden; and Eric Wallace-Senft, 46, of Woodbury, a sugar maker.

Wallace-Senft had sought to defend himself but is now represented by Michelsen, according to court records.

A reporter who covered the protest was also charged with trespassing. The trial against The Chronicle Publisher Chris Braithwaite will be held independently, because he has different arguments to present at court.

Baker has reasserted her argument that the property line dispute between GMP, Wileman and his companies and the Nelsons is not relevant to the criminal trespass charges.

She pointed out that none of the defendants is a party in the civil suit and the details from the civil case would confuse the issues before the jury.

“The fact that the Nelsons are litigating the matter is not proof that they own the land in question,” Baker wrote.

“The state is not seeking to exclude the existence of a lawsuit between GMP and the Nelsons, merely that a part of that litigation that regards a dispute over the property line,” she wrote.

The preliminary restraining order issued by the civil court judge that allowed GMP to blast near the Nelson property last fall is relevant, she said.

“The order shows that GMP was in lawful possession of the property and therefore had authority to request that the defendants leave the property.”

But she argued that the defendants’ reasons for being on the property – to protest – should be excluded because it’s not relevant.

Even if the judge decides that the defendants’ status as protesters is relevant, Baker argued that still doesn’t give them the right to trespass.

“The defendants have no First Amendment right per the United States or Vermont constitutions protecting their right to protest on private property.”

Baker cited the 1979 Vermont Supreme Court ruling about protests at the Vermont Yankee power plant. The supreme court ruled that the defense of necessity against the charge of trespassing on private property is only allowed in certain emergencies.

In the Yankee protest case, she wrote, “the trial court excluded evidence relating to the hazards of a nuclear power plant offered by defendants in a criminal trespass case. …

“The court held that the defendants failed to satisfy an element of the necessity defense and stated the acts of protest ‘may be a method of making public statements about nuclear power and its dangers, but they are not a legal basis for invoking the defense of necessity.'”