NEWPORT CITY – The attorney for the “Lowell Six” protesters says a judge should overturn the guilty verdict handed down by an Orleans County jury.
Defense attorney Kristina Michelsen filed a motion Tuesday in Orleans Superior Court – Criminal Division – saying that her six clients should not have been found guilty of criminal trespassing when they protested the Lowell wind project on Dec. 5 in Lowell.
She has asked Judge Martin Maley to acquit the six protesters or dismiss the charges against them.
She called the prosecutor, Deputy State’s Attorney Sarah Baker, negligent and said Baker intentionally disregarded the judge’s rulings during the trial.
“The state’s intentional violations distorted the truth-seeking purpose of this trial,” Michelsen wrote.
She also challenged Maley’s instructions to the jury and the lack of evidence about who has a deed to the Lowell wind property.
The judge must rule on the motions before setting a sentencing hearing. The state is discussing restitution with Lowell wind developer Green Mountain Power.
The six – Dr. Ron Holland, Anne Morse, David Rogers, Ryan Gillard, Suzanna Jones and Eric Wallace-Senft – were arrested after they blockaded construction workers at the Lowell wind site.
GMP, which is erecting 21 industrial-grade wind turbines on the ridgeline, called police when the protesters would not leave. Deputies also arrested Chronicle Publisher Chris Braithwaite, whose case is proceeding independently of the protesters.
The six protesters were offered Diversion and could have had their charges dropped when they were first cited into court. They opted to take their case to a jury, and lost at trial on Aug. 15.
Holland, an emergency room doctor at North Country Hospital, took the stand to say that he and the others were careful to protest on land that is claimed by Lowell wind neighbors Don and Shirley Nelson. The Nelsons are suing GMP and ridgeline property owner Trip Wileman over ownership of part of the ridgeline.
Michelsen argues in her motion after trial that there are four different reasons why the judge should vacate the verdict by the jury:
• the prosecutor violated the judge’s ruling about an expert witness, “depriving the defendants of the right to confront and cross-examine the witnesses against them;”
• there is a legitimate property dispute, and prosecuting someone in the midst of that dispute is against the interests of justice;
• the judge failed to instruct the jury properly about ownership and intent;
• the prosecutor just didn’t provide enough evidence to prove her case.
Some of these arguments came up during the day-long trial.
Michelsen made a verbal motion to dismiss the case after Deputy State’s Attorney Sarah Baker had presented her witnesses on Aug. 15.
The judge rejected that motion, saying that Baker had made her case if taken in the best light for the state, even though it was confusing.
At trial, Michelsen tried to stop Baker from putting surveyor Andrew Nadeau on the stand, saying that she didn’t get to interview him in advance.
The judge told Baker she couldn’t use him as an expert witness. During the trial, Baker did put Nadeau on the stand to say that he did a survey of the property that GMP has a lease for from Wileman. But the judge, after Michelsen’s objections, wouldn’t allow Baker to ask him about what he thought about a previous survey of the property line.
Michelsen said Baker kept asking Nadeau questions despite objections, until the judge warned Baker to stop.
“The court sustained many of these objections but the damage was done,” Michelsen wrote Tuesday.
That hamstrung the defense, she said.
“The witness was presented as an expert and defendants appeared to be trying to hide something from the jury. The state’s violation of multiple court rulings is sufficient for a dismissal,” she wrote.
Michelsen accused Baker of misrepresenting what she wanted to do at trial to the defense beforehand.
“The prosecutor questioned this witness with full knowledge of the prejudice. This conduct was well beyond mere negligence. Consequently the verdict should be vacated and these prosecutions should be dismissed” without a chance of another trial, Michelsen wrote.
The ownership of the property is in dispute, Michelsen wrote, and that means GMP should not have been able to use the state police to stop the protesters.
“While no Vermont court has addressed the issue of the state’s pursuit of criminal trespass charges where there is a good faith dispute regarding ownership of the property allegedly trespassed upon, other states have,” she wrote.
Other states have said that it is an abuse of power for the state to intervene on behalf of one property owner against another involved in a dispute, she wrote.
“The significance of this issue was raised by the jury in their question about whether there was a civil case pending,” Michelsen said.
The jury came out of deliberations to ask that and another question about who has control of a property in dispute under Vermont law. The judge told the jury at the time to make their own judgment on that.
“It simply defies common sense and logic that the state could prosecute people for trespass when a legitimate dispute over ownership of the property is pending,” Michelsen wrote.
And then Michelsen asked what would happen if the Nelsons win their lawsuit in civil court and are found to have control of the land on which the protesters stood. “It would be the ultimate injustice that these convictions would stand in the event that the Nelsons prevail in civil court,” she wrote.
The judge did not take the defendants’ request that the jury be instructed about whether the defendants had permission from someone with a “superior ownership interest in the property,” Michelsen said.
And the jury was never presented information about who has the deed to the property, only details about GMP’s lease and easements from Wileman, Michelsen said.
“This lack of evidence of the ownership of the property is fatal to the state’s case and requires that this court reverse the convictions,” she concluded.
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