NEWPORT CITY – The Chronicle publisher arrested for trespassing while covering a December 2011 protest at the Lowell wind project site is taking his case to trial.
Christopher Braithwaite, 68, of West Glover was scheduled to pick his jury Thursday at Orleans Superior Court-Criminal Division.
His attorney, Phil White, gave the court notice that he plans to call T. Ross Connelly, publisher of the Hardwick Gazette, as an expert witness and Orleans County Record reporter Robin Smith to testify.
But if the state gets its way, that won’t happen.
Deputy State’s Attorney Sarah Baker filed a motion in limine Wednesday asking the court to exclude the testimony of any witness regarding the privilege of the press to trespass on private property to report on the response of law enforcement to the protest.
Baker wrote that a motion to dismiss filed by White in December 2011 – which was based on the premise that Braithwaite had a privilege to cover protests on private property under both the U.S. and Vermont Constitutions – was denied by Judge Robert Gerety Jr. in February.
“The Court concludes that there is no legal authority for the position that the Defendant, as a member of the press, enjoyed a privilege to trespass on private property under the circumstances presented in this case,” Gerety wrote and Baker quoted in her motion.
White wrote in his disclosure that Connelly’s expertise is in regards to the “nature of the working press, its role as the Fourth Estate, the importance of being able to present and photograph the confrontation between the state and the protesters and their treatment during their arrest, and the history and impact of the press’s role in covering protests from the Boston Massacre, women’s suffrage, the labor movement of the 20s and 30s, through the civil rights movement, the anti-war movement, environmental protests, and around the world in such places as Tiananmen Square, Cairo, and Damascus.”
Baker notes that neither Connelly nor Smith was present at the time of Braithwaite’s arrest.
Baker quoted a U.S. Supreme Court case in which the court held that laws may be enforced against the press as they are against other citizens, “despite the possible burden that may be imposed.”
Baker wrote that the court emphasized that the “publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.”
The defense concedes that courts have generally found that the press has no more right than the public to trespass, Baker wrote, and without such privilege, Braithwaite has no defense.
During the pre-trial conference Wednesday, White said he’s working on getting records from Green Mountain Power, the company that built the industrial wind site on land leased from Trip Wileman.
White said he’s planning on filing a protective order as well, but that had not been filed as of Wednesday afternoon.
While looking over Baker’s motion, Judge Howard VanBenthuysen also noted Caledonian-Record Publishing Co. vs. Vermont State Colleges, in which the Vermont Supreme Court upheld a lower court denial of access to student disciplinary records and hearings at Lyndon State College in 2003.
VanBenthuysen said the case illustrates how the Constitution does not give the press rights other citizens do not enjoy.
The trial is expected to take one day.
The six protesters arrested at the same time as Braithwaite were found guilty by a jury and are scheduled to be sentenced Dec. 11.
Six additional protesters arrested in August are awaiting VanBenthuysen’s decision on their motion to dismiss. That motion is based on the premise that ownership of the land where they were arrested is the subject of a civil court dispute, which constitutes reasonable doubt. They are represented by Kristina Michelsen.