Baker filed her motion at the request of Judge Robert P. Gerety Jr., who has told Baker and defense attorney Kristina Michelsen not to bring up the reason the six defendants were on the ridgeline or any details about the civil trial before jurors until he makes a decision at trial about whether it is admissible.
Gerety said in a May order that Baker has a well-founded concern that a criminal trial is no place to resolve a property line dispute.
But he said the state has to prove that the defendants were on property where they were not allowed, in order to win the argument that they were trespassing. The defendants, he wrote, have the right to defend themselves with evidence on the elements of the charge, including who owns the land.
The protesters have said they want their day in court to argue their case against the Lowell wind project.
Michelsen is representing all six defendants: Dr. Ron Holland, 67, of Irasburg, an emergency doctor at North Country Hospital in Newport City; Anne Morse, 48, of Craftsbury Common, a professor at Sterling College; mason and write David Rodgers, 69, of Craftsbury; mentor Ryan Gillard, 23, of Plainfield; farmer Suzanna Jones, 50, of Walden; and Eric Wallace-Senft, 46, of Woodbury, a sugar maker.
Wallace-Senft had sought to defend himself but is now represented by Michelsen, according to court records.
A reporter who covered the protest was also charged with trespassing. The trial against The Chronicle Publisher Chris Braithwaite will be held independently, because he has different arguments to present at court.
Baker has reasserted her argument that the property line dispute between GMP, Wileman and his companies and the Nelsons is not relevant to the criminal trespass charges.
She pointed out that none of the defendants is a party in the civil suit and the details from the civil case would confuse the issues before the jury.
“The fact that the Nelsons are litigating the matter is not proof that they own the land in question,” Baker wrote.
“The state is not seeking to exclude the existence of a lawsuit between GMP and the Nelsons, merely that a part of that litigation that regards a dispute over the property line,” she wrote.
The preliminary restraining order issued by the civil court judge that allowed GMP to blast near the Nelson property last fall is relevant, she said.
“The order shows that GMP was in lawful possession of the property and therefore had authority to request that the defendants leave the property.”
But she argued that the defendants’ reasons for being on the property – to protest – should be excluded because it’s not relevant.
Even if the judge decides that the defendants’ status as protesters is relevant, Baker argued that still doesn’t give them the right to trespass.
“The defendants have no First Amendment right per the United States or Vermont constitutions protecting their right to protest on private property.”
Baker cited the 1979 Vermont Supreme Court ruling about protests at the Vermont Yankee power plant. The supreme court ruled that the defense of necessity against the charge of trespassing on private property is only allowed in certain emergencies.
In the Yankee protest case, she wrote, “the trial court excluded evidence relating to the hazards of a nuclear power plant offered by defendants in a criminal trespass case. …
“The court held that the defendants failed to satisfy an element of the necessity defense and stated the acts of protest ‘may be a method of making public statements about nuclear power and its dangers, but they are not a legal basis for invoking the defense of necessity.'”