NEWPORT CITY – Judge Martin Maley has denied the request by the Lowell six wind opponents for acquittal of the jury conviction against them for trespassing or for dismissal of the charges.
Maley’s ruling Friday means that the Lowell six protesters will have to appeal to the Vermont Supreme Court to see their convictions overturned.
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 Dec. 5, 2011.
Green Mountain Power, which has erected 21 industrial-grade wind turbines on the Lowell ridgeline, called police when the six would not leave. They were arrested and charged, along with a reporter.
The six could have had their charges dropped if they had opted for Diversion when they were first cited into court. They opted to take their case to a jury, and lost at trial in Orleans Superior Court – Criminal Division on Aug. 15. Holland, an emergency doctor at North Country Hospital, argued on the stand that he was on land that belonged to fellow wind opponent Don Nelson, not on land leased by Lowell wind developer GMP.
Their attorney, Kristina Michelsen, unsuccessfully asked Maley to dismiss the charges during the trial. He did not. After the verdict, she has asked 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 had to rule on the motions before setting a sentencing hearing. The state has discussed restitution with GMP.
Sentencing will be on hold if the appeal goes to the supreme court as expected.
In his order, Maley ruled that the evidence presented to the jury and instructions to the jury were proper and that evidence provided by a surveyor didn’t harm the defense case.
Michelsen said that Baker should have presented evidence of a deed proving that Tripp Wileman and Moose Mountain Forestry owned the land that he leased to GMP for the wind project. Without that deed evidence, she said Baker did not prove that GMP had the right to have the protesters arrested for trespassing.
Michelsen said that a criminal trial should not have been put on while the property where the protest took place is in dispute in civil court. Lowell wind neighbor Nelson is suing Wileman and GMP over that portion of the ridgeline.
And she said Baker damaged the defense when she put surveyor Andrew Nadeau on the state and tried to question him as an expert witness, which the judge had already said could not be done at trial.
“It is true that the state did not present testimony from any representative of the Moose Mountain companies or the actual deeds regarding ownership. Nevertheless, after reviewing the evidence that was admitted, the court concludes that the evidence of the lease agreement and easement provisions were enough to substantiate a finding of lawful authority to exclude,” Maley wrote.
“Indeed the evidence would have been sufficient to support the verdict even if the challenged survey and testimony from (surveyor Andrew) Nadeau had been excluded from the trial,” Maley wrote.
“The court concludes that the jury here could have reasonably found defendants guilty of criminal trespass beyond a reasonable doubt.”
“The court remains unconvinced that the state had any improper motive in this prosecution … and the court cannot conclude that dismissal will serve the ends of justice.”