December 5, 2012
Vermont

Braithwaite asks for dismissal based on new evidence

NEWPORT CITY – The Chronicle publisher charged with trespassing on Green Mountain Power property while covering a protest of the Lowell Mountain industrial wind development filed a renewed motion to dismiss based on newly discovered evidence.

According to Phil White, attorney for Christopher Braithwaite, 68, of West Glover, e-mails obtained by subpoena from Green Mountain Power (GMP) indicate that the state will be unable to prove beyond a reasonable doubt that GMP did not give Braithwaite permission to be on the property as a journalist covering both the protests and the reaction of law enforcement.

“Dismissal of this charge will serve the ends of justice and the effective administration of the court’s business,” White wrote.

Some of the evidence obtained is subject to a protective order, White wrote, and hence the version of the motion made public is heavily redacted. The full version was submitted to the court under seal, but White has requested they be unsealed due to their “obvious relevancy and the lack of any corporate interest to keep them sealed.”

Braithwaite is scheduled to go on trial Dec. 13 and 14. White requested an evidentiary hearing prior to trial where GMP employees David Coriell, Charles Pughe, Robert Dostis, and Steven Terry would be required to be present to testify.

Coriell, the GMP employee at the top of the mountain with Orleans County Sheriff’s Department chief deputy Phil Brooks at the time of Braithwaite’s arrest in December, stated under oath that he told Brooks there would be “no exceptions” in arresting people for trespassing.

White wrote that Brooks told Braithwaite to leave the property altogether or return to the crane path, protesters blocked, to be arrested.

White included portions of his deposition of Coriell in May, in which Coriell said he read Braithwaite’s editorial opposing the industrial wind project on Lowell Mountain.

“There’s certainly a debate in Vermont and back and forth,” Coriell said. “That said, you know, we always talked to Chris. We never didn’t give him access to the site because of his opinions. We sent him the regular updates, and we invited him to the site.”

“And so are you saying that had he been wearing a safety hat and a vest that he would have been allowed to cover this protest?” White asked.

“I guess the, I wasn’t the one to make the determination whether he was abiding by what the sheriff’s deputy was asking of him,” Coriell responded. “At that point my responsibility was to let the sheriff’s deputies do their job. I wasn’t going to interfere with that, with that action.”

“Well if the deputy sheriff told him that Green Mountain Power had said no exceptions to arrest, is that fair to say?” White asked.

“I said, you know, I told the deputy sheriff who we had on site and that we couldn’t have people who were unauthorized on our site, on the site, so in that context, yeah, there was no exception,” Coriell said.

Coriell told White he was aware at the time that Braithwaite was there as a working member of the press and that Braithwaite was not in the crane path at the time.

“Based on this recently discovered information, Defendant Christopher Braithwaite prays that this Honorable Court shall dismiss this matter for lack of prima facie case without his having to incur the expense of trial,” White wrote.

White had already filed a motion to dismiss based on a constitutional privilege to cover protests on private property under both the state and federal constitutions, but that 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.

“Regardless of whether the arguments – outlined in our initial motion and reasserted by reference in this motion – find resonance with the Court under constitutional grounds, they should resonate to support a motion to dismiss under the interests of justice on the facts of the present case,” White wrote.

White disclosed to the state last week that he planned to call T. Ross Connelly, publisher of the Hardwick Gazette, as an expert witness on the nature of the working press and the importance of the ability of press to cover government actions at protests, as well as Orleans County Record reporter Robin Smith.

The state, represented by Deputy State’s Attorney Sarah Baker, asked the court not to allow any testimony regarding any special privileges afforded the press in regard to covering events on private property.

Baker wrote 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.”

White asked the court’s permission to extend until Wednesday his deadline to respond to the state’s motion to exclude witness testimony.

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.