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Lowell Wind: Trespassing cases take different tracks

NEWPORT CITY – The cases of the “Lowell Six” protesters charged with trespassing on the Lowell wind project site and the trial of the journalist arrested while covering the protest are heading to trial on very different tracks.

In the Lowell Six trial, the focus is likely to be on who owns the property where the protest took place.

In the trial of Chronicle Publisher Chris Braithwaite, also charged with trespassing, the issue is whether journalists have the right to be on private property to cover a protest and to watch police make arrests.

One thing is the same in all cases. They are high profile, and the accused have brushed off offers of Diversion and a chance to clear their records in favor of trying to win their arguments at trial.

Criminal trespassing carries a maximum penalty of three months in state custody and/or a $500 fine.

Jury selection is slated to begin next week for the six protesters, including North Country Hospital Dr. Ron Holland of Irasburg. In the trial to follow, defense attorney Kristina Michelsen is expected to focus on the dispute over who owns the property where the protest occurred – or at least where the property line is located.

Wind opponents Don and Shirley Nelson are claiming, in a countersuit in Orleans Superior Court – Civil Division, that they should own a piece of the Lowell ridgeline where two of the 21 proposed turbines and a portion of the crane path.
Michelsen says, in documents filed in the criminal court next door, that she doesn’t intend to put industrial wind or civil disobedience on trial, but rather the location of the property line.

The judge is expected to rule on whether such evidence is allowed at trial. He told the attorneys involved that they are not allowed to bring up the civil lawsuits over the property, the protest, or the controversy over the wind project, until he issues his ruling.

He is expected to decide at trial, which could take place in late June or early July, whether the property line argument will be allowed. He also must decide whether the prosecutor can use a civil court order that gave Green Mountain Power, which is leasing the land, the authority to ask law enforcement to move protesters away from blasting areas.

The case against Braithwaite is so different from the Lowell Six that it is proceeding on a separate track to trial, expected later this year. The arguments are not the same, both defense attorney Phil White and Deputy State’s attorney Sarah Baker agreed in court Wednesday morning, at a calendar call hearing, before court manager Penelope Carrier.

White and Baker have taken a deposition from GMP spokesman Dave Coriell, who was representing GMP on the wind site when the protest took place Dec. 5, 2011.

They also said that they will subpoena GMP for documentary evidence taken during the day of the protest. They need at least another month to do that, pushing Braithwaite’s trial back further on the schedule. They will be back in court in July to update the court on how the case is progressing.

White said in court documents that he will call T. Ross Connelly, the publisher, owner and editor of The Hardwick Gazette, to take the stand. Connelly, a respected journalist among his peers in Vermont, will be presented as an expert witness to talk about how the press works and the role of the Fourth Estate with special rights.

White said he will ask Connelly to discuss “the importance of being able to be present and photograph the confrontation between the state and the protesters and their treatment during their arrest …”

The judge has already denied White’s motion to dismiss the charge, saying Braithwaite does not have a right to go on private land without permission even to cover a protest and arrest by police.