July 10, 2012
Vermont

Court won’t dismiss trespassing charges against Lowell wind protesters

Jennifer Hersey Cleveland, Staff Writer | The Caledonian Record | caledonianrecord.com 10 July 2012

NEWPORT CITY – Unlawful trespass charges against six protesters who blocked a crane path at a Lowell Mountain wind development site in December will not be dismissed by the court.

In orders filed July 6 and 9, Judge Robert Gerety Jr. also decided that orders in a civil dispute over the location of a property boundary at the site will not be introduced as evidence.

Six protesters, including an emergency room doctor and a college professor, pleaded not guilty to criminal trespassing after being arrested on property which both developer Green Mountain Power (GMP) and project neighbors Don and Shirley Nelson claim was under their lawful possession.

Attorney for five of the six protesters, Kristina Michelson, argued in her motion that the state is abusing the criminal court process by prosecuting the case while the land in question is still under dispute in civil court. GMP could have sought civil action against the protesters, but instead the state stepped in to do GMP’s bidding.

Gerety wrote that in cases cited by Michelson, the government acknowledged it was using the criminal process to get a determination of whether a defendant had the legal right to be on property.

In this case, however, he wrote, the state, represented by Deputy State’s Attorney Sarah Baker, is not trying to settle a property dispute by prosecuting a criminal allegation.

For the district court to dismiss charges against the will of the prosecutor, there would have to be compelling evidence that requires dismissal to assure fundamental fairness in the administration of justice, Gerety wrote.

“The Court does not find that the prosecutors are motivated by an improper desire to advantage one private party over another in a civil dispute,” Gerety wrote.

“It is not likely that the outcome of this case will settle the civil dispute between Nelson and GMP,” he wrote. “Also, it appears to the Court that the prosecution may well be motivated by a desire to avert a breach of the peace and to protect public safety at a construction site.”

Baker wrote in a motion that she’d like to introduce a civil court order in which the Nelsons were denied a temporary injunction to prevent blasting at the site.

First, there is no order making a final determination regarding the person or company in lawful possession of the land in question, he wrote.

In a Nov. 1, 2011, order, the civil court denied the Nelsons the injunction, but not because the court found that GMP was in lawful possession of the land, he wrote.

The injunction was denied because the Nelsons did not demonstrate that they would suffer irreparable harm to the land in their petition – one of the elements of proof in obtaining an injunction or restraining order, Gerety wrote.

The state’s interpretation of the civil court order is without merit, Gerety wrote.

A main part of the protesters’ defense is that they were on land owned by the Nelsons, who gave them permission to be there.

The state, on the other hand, will use a written lease between GMP and property owner Trip Wileman and recorded survey in its attempt to prove GMP had the legal authority to remove trespassers from the site.

“In this Court’s view, the content of the November 1, 2011, order had little or no probative value as to any issue in this prosecution for unlawful trespass. Any minimal probative value the Order might have is very substantially outweighed by the significant danger that it will confuse the issues and mislead the jury,” Gerety wrote.

After a careful review of all orders in the civil case, Gerety concluded that the introduction of any order “will almost certainly cause significant confusion of the issues and likely lead to unfair prejudice.”

There has been no order from Gerety regarding whether the protesters can tell the jury why they were on the land in the first place.

Baker argued that sort of testimony or evidence would cause the jurors to focus on their feelings about wind power, civil disobedience and the right to protest, rather than the merits of the case.

The Nelsons’ lawsuit against GMP and property owner Trip Wileman is not expected to go to trial until next year at the earliest. The wind turbines are due to arrive at the wind project site next week and go online by the end of this year.

The criminal trespass charge against The Chronicle Publisher Chris Braithwaite, who covered the Dec. 5 protest and was arrested when he would not leave the property when requested by police, is following a different court schedule and involves different legal arguments over freedom of the press.