Judge Howard VanBenthuysen has dismissed “with prejudice” a criminal charge of unlawful trespass against Chronicle Publisher Chris Braithwaite.
The charge followed his arrest on December 5, 2011, while covering a citizens’ protest against Green Mountain Power’s industrial wind project on Lowell Mountain.
Mr. Braithwaite denied the charge, and was just days away from a jury trial when, on December 5, the state dismissed the charge “without prejudice.”
However, Deputy State’s Attorney Sarah Baker opposed a motion by Mr. Braithwaite’s defense attorney, Philip White, asking the judge to dismiss the case with prejudice.
Her position, essentially, was that while the state could still prove that Mr. Braithwaite was guilty, it would have to call a former GMP employee to the witness stand. The employee, David Coriell, was present when Mr. Braithwaite was arrested, but is now studying out of state.
Ms. Baker told the court that “bringing him back to Vermont on the day the jury trial was scheduled would have been more burdensome on that witness that the State’s interest in a conviction on a misdemeanor trespass charge with a defendant with no prior record and a defendant that is unlikely to reoffend.”
“After spending a year as an accused criminal and running up more than $20,000 in legal fees,” Mr. Braithwaite commented on December 26, “I found that statement dismissive – and oddly offensive. I can assure Ms. Baker that, should I ever again find myself in circumstances like those on Lowell Mountain on December 5 last year, I would not hesitate to ‘reoffend.’ That’s my job.”
Judge VanBenthuysen’s ruling, signed December 21 and released on Christmas Eve, means that the criminal case is closed, and cannot be revived by the state.
In his ruling, the judge called Braithwaite’s prosecution “a rare case in which a dismissal with prejudice is appropriate.”
He wrote that a series of internal e-mails obtained by Mr. White from GMP “discuss the fact that the company…had given, before the incident took place, express instructions to its agents that the press and Mr. Braithwaite were not to be arrested during protests.”
The judge also wrote that “because it appeared based on evidence disclosed on the eve of trial that Mr. Braithwaite had the consent of the landowner to be present on the date charged – that in effect, Mr. Braithwaite had been granted immunity from prosecution by the landowner – the Court was not surprised by the State’s Motion to dismiss.”
That was a wise decision, the judge noted. Turning to the matter of the state’s reluctance to inconvenience Mr. Coriell, Judge VanBenthuysen wrote: “However, nothing in the State’s response to the Motion explains how it could resurrect this prosecution in the face of the GMP memoranda, revealed at the eleventh and a half hour to both the Defense and State.”
“The judge’s ruling on the law seems crystal clear,” Mr. Braithwaite said, “and it leaves me wondering why GMP didn’t pick up the phone on December 6 last year and tell the prosecutor the company had made a mistake, that no crime had been committed.”
Judge VanBenthuysen wrote that he “viewed the question of whether Mr. Braithwaite had permission to be on the GMP property as controlling.”
In a footnote, he rejected a constitutional defense offered by Mr. White:
“This court…rejects Defendant’s First Amendment claim that there is a special or general journalist’s privilege allowing journalist to trespass or otherwise violate the law in order cover stories involving Governmental action, even of local or regional interest.”
“While I am delighted to be cleared of a criminal charge, and I’m sure Mr. White is delighted to have won that result for his client,” Mr. Braithwaite said, “we share some disappointment that we will not have the opportunity to make that argument before the state Supreme Court. Mr. White argued that our courts should balance private property rights against the right – and obligation – of the press to cover the actions of our government, particularly when the liberty of citizens is at stake.
“This was a good case because it involved an act of civil disobedience at the site of a project that has had a major impact on our environment, and was the subject of intense public debate,” Mr. Braithwaite said. “The ‘victim’ was a large corporation whose business is routinely subjected to intense government scrutiny and regulation. We make no claim to a right to follow the police into the bedrooms of citizens at 2 a.m., when they are called to investigate a domestic disturbance. As Mr. White told the court, that is where the sort of balance he advocates would properly fall on the side of personal privacy and private property rights.”
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