Documents obtained by the Orleans County Record Thursday reveal that Green Mountain Power explicitly directed staff at the Lowell Mountain industrial wind site that reporters covering protests and the police response were not to be arrested.
Deputy State’s Attorney Sarah Baker declined to comment on her reasons for dismissing the trespass charge against Chronicle publisher Chris Braithwaite, and the court has taken under advisement his motion to unseal internal Green Mountain Power e-mail communications obtained through subpoena by defense attorney Phil White.
“Charlie, I don’t know if you saw the press this week, but a lot of buzz and discussion around reporters arrest,” Robert Dostis of GMP wrote Dec. 10, 2011, ostensibly to Charles Pughe of GMP.
“If Chris was not been arrested the other arrests would likely have been a non event. Frankly I don’t understand why Chris was arrested since you gave exact instructions that he not be,” Dostis continued.
“This week the Communication team have spent a lot of time and energy dealing with this. The last thing we want is more especially since all of Vermont press are now engaged in the discussion about first amendment rights,” Dostis wrote.
“Arresting reporters will do more harm than good,” Dostis wrote. “We also have to be careful with the other trespasses, if we arrest without first giving warning, we look like the bad guys and we give the protesters just what they want. They are doing this because they want to annoy us in hopes we become aggressive and they can show everyone what a mean and arrogant foreign owned company they say we are.”
Regarding an editorial about Braithwaite’s Dec. 5, 2011, arrest in the Orleans County Record, Dostis wrote in an e-mail Dec. 11, 2011, to other GMP employees, “I don’t understand why it is says that GMP said arrest anyone trespassing including reporters given we gave the explicit instruction that Chris was not be arrested. Does anyone know what happened?”
Stephen Terry, principle of Worth Mountain Consulting, wrote, “I think now we have to put an end to the notion we tried to stop media, when we simply did not.”
“As Robert asks: did the leadership instruction not to arrest CB just not get relayed fast enough Monday morning?” Terry continued.
In what Braithwaite’s attorney Phil White deems an apparently “disingenuous” response, GMP employee David Coriell wrote, “It didn’t get relayed to all the officers involved. That said, I know the Sheriff had no intention of arresting Chris. Chris actually arrested himself by physically walking him back to the middle of the crane path.”
Coriell continued, “I don’t care who you are, if you call a police officer an explitive, your chances of getting arrested increase. He step over a professional line.”
“That said, we have no intention of arresting the press,” Coriell wrote.
That response doesn’t make any sense to Braithwaite, who was contacted by phone Thursday afternoon.
“He was there and watched the whole thing happen,” Braithwaite said of Coriell, who appeared to be the top GMP official on site that day.
And Orleans County Sheriff’s Department Chief Deputy Phil Brooks told Braithwaite that he was told there would be no exceptions to who got arrested.
Under oath, during a May deposition, Coriell confirmed that he was the one dealing with Brooks and that he’d told him there would be no exceptions, according to the motion to dismiss.
“In doing so he violated the explicit directive of his corporate superiors,” White wrote.
Coriell’s directive to Brooks “would have been beyond the authority he was granted and would be an ultra vires action, personal in nature, and beyond any corporate direction actually made by his superiors,” White wrote.
Braithwaite said, “There was clearly some miscommunication, which came as a shock to Green Mountain Power, which chose not to act on it for a full year.”
In that year, Braithwaite has been spending a lot of time defending himself against a criminal complaint, spending approximately $10,000 in legal fees. The legal fight in the past year also consumed a lot of time that he otherwise would have spent at work on the newspaper.
“It was kind of an unpleasant way to spend a year, certainly a novel year, fighting a criminal charge,” Braithwaite said.
Braithwaite said the state couldn’t have been aware of the newly discovered information until White obtained it late last week.
Braithwaite was not formally arraigned until Dec. 20, 2011, and the e-mail exchange took place between Dec. 5 and 11.
When asked how he responded to the late discovery, Braithwaite said, “with a degree of anger and puzzlement.”
This could have been corrected earlier, Braithwaite said, and “The state would have been compelled to back down and not bring the charge in the first place.”
GMP spokesperson Dorothy Schnure said Thursday that GMP did not withhold information from the prosecution and that it is not GMP’s job to decide how police respond to a crime.
“We supplied these documents to Sarah Baker, to Phil White,” Schnure said. When asked when GMP supplied the documents, Schnure said it took place after the information was requested.
When asked when it was requested and supplied, Schnure reiterated that it was provided when requested. She said GMP willingly provided several hundred pages of confidential documents to the defense.
White’s motion indicates that the defense received the documents on the afternoon of Nov. 29, nine business days before Braithwaite was scheduled to go on trial.
Schnure said people were standing in the way of work at the site and that when they refused to leave, GMP called the police. Once the police arrived, the situation was out of their hands, she said. “We can’t tell them what to do,” Schnure said.
But she noted that Braithwaite had received e-mails telling press they needed to be trained, get permission, wear safety equipment and be accompanied by a GMP employee. “He did not have permission,” Schnure said, and he had not received training or safety equipment.
“We’ve taken reporters up to the site. We have no intention of keeping reporters away,” Schnure said.
Schnure said the arrest of the six protesters had already taken place when Brooks asked Braithwaite to move away from the crane path, where he could still see what was going on.
Schnure said GMP just wanted to build a project safely, there were people in the way, and the police were called. It wasn’t Coriell’s decision whether Braithwaite would be arrested that day.
Two weeks later, Schnure said, GMP took Braithwaite on a tour of the site.
Schnure said she could not comment on anything contained in the sealed documents.
Braithwaite commended White for his “obviously brilliant idea” to “pierce the corporate veil” and obtain Braithwaite’s defense from his accusers.
“Subpoenas are wonderful things,” Braithwaite said.
White filed a motion to have the charge dismissed with prejudice, Baker said. That would prevent the state from re-filing the charge at a later date. Baker said she’ll file her response in a few days.
Baker said she is not at liberty to comment on any materials still under court seal.
“I don’t think you can say they dismissed the case based on the contents of the e-mails,” Schnure said.
The case drew attention to the protest and the underlying arguments about wind development, which is good, Braithwaite said.
Because it ended in dismissal, the case has no value as a precedent in other cases involving press access, Braithwaite said.
“Getting it dismissed should encourage journalists, especially in Vermont, to exercise their First Amendment rights and obligations vigorously, even when they meet a police officer who says they don’t have any,” Braithwaite said.
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