Lowell Protesters’ Prosecution To Continue

http://caledonianrecord.com/main.asp?SectionID=1&SubSectionID=145&ArticleID=89980&TM=47517.55

2/2/2013

Jennifer Hersey Cleveland
Staff Writer

NEWPORT CITY — The prosecution of the six protesters arrested for trespassing at the Lowell Mountain site in August will continue.

In a decision filed late Friday afternoon, Judge Howard VanBenthuysen denied the motions to dismiss the charges.

The six protesters, represented by attorney Kristina Michelsen, argued that the charges against them should be released because ownership of the land where the trespass allegedly occurred is in dispute in civil court. That fact alone gives rise to reasonable doubt, which would prevent a jury from finding guilt, Michelsen wrote.

“These prosecutions should be dismissed because pursuing them constitutes an abuse of process by the state,” Michelsen wrote.

“Green Mountain Power should not be permitted to engage the police and the prosecutor’s office to resolve a civil property dispute,” Michelsen wrote.

But Deputy State’s Attorney Sarah Baker wrote in her response, “There has been no abuse of process by the State. The purpose of the prosecution is to hold the Defendants responsible for an Unlawful Trespass, not to resolve a property line dispute.”

Defendants William Roddy, 66, of Irasburg, Dennis Liddy, 64, of Westfield, Meredith Pearce Jones, 63, of Irasburg, Carol Irons, 72, of Albany, Keith Ballek, 57, of Sheffield, and 51-year-old Raymond Micklon of Craftsbury Common were arrested Aug. 6 while blocking a private road and preventing Green Mountain Power (GMP) vehicles from getting to the construction site, according to Sgt. Michael LaCourse’s affidavit.

The land in question is being claimed in Orleans Superior Court-Civil Division by both Don and Shirley Nelson and GMP, which leases land from Trip Wileman.

The protesters say the Nelsons gave them permission to be on the land.

In his decision, VanBenthuysen wrote that neither the defendants, nor any staff in the State’s Attorney’s Office, has any legal stake in the property nor in the outcome of the civil court dispute.

GMP’s claim of ownership stems from the lease it has with Moose Mountain Wind and Moose Mountain Forestry and its claim is supported by a survey done by Donald Nadeau, the judge wrote.

VanBenthuysen raised testimony and evidence presented in the trial of the first six Lowell wind protesters, who were found guilty at a jury trial.

In that case, involving defendants Dr. Ron Holland and Sterling College professor Anne Morse, the jury was instructed to determine whether GMP was the lawful owner of the land in question, in determining one element of an unlawful trespass charge.

Abuse of Process

Citing a 1981 case, VanBenthuysen said an abuse of process is when a legal procedure is used to accomplish something for which it was not intended.

In that case, a criminal charge was used to settle a property dispute, but the U.S. government — the prosecuting agent — had a vested interest in resolving the property dispute.

In the case of the protesters, neither the state nor the state’s attorney has anything at stake in the outcome of the dispute.

“Nor has it been shown in any way that the prosecutions are either being used to affect the outcome of that property dispute or possibly could affect the outcome,” VanBenthuysen wrote.

The defendants argue that permission from the Nelson, coupled with the civil court dispute, means the state cannot prove one element of the charge, the judge wrote.

“Therefore, the Defendants argue, this prosecution cannot but constitute an attempt by the State to resolve the underlying property dispute,” VanBenthuysen wrote. “The Court finds this reasoning unpersuasive.”

“These Defendants were not simply exercising a presumptive right of access to a public park: they deliberately put themselves in a position that they knew would trigger the prosecutions that resulted,” VanBenthuysen wrote.

“The Movants have not alleged any actions by the State that would lend even to a suggestion that the prosecutions are ‘perverted to accomplish an ulterior purpose,'” he continued.

“Citing public safety concerns and a belief that Defendants’ acts constituted criminal trespass, the State has indicated that it possesses evidence sufficient to establish the elements of trespass under Vermont statute,” VanBenthuysen wrote.

There is no evidence that the state has any improper motive in prosecuting the protesters, he concluded.

The court is taking note of the trial of the first six protesters as well as the land ownership dispute, but not deciding whether it is GMP or not, the judge wrote.

In that trial, the state presented evidence that GMP controls the land in question through leases with Wileman. VanBenthuysen noted that the defendants in that case presented contradictory evidence.

“The question before the Court on the Motion is not which of these versions is the correct one, but rather whether, excluding the modifying evidence offered by the Defendants, the State has substantial admissible evidence fairly and reasonably showing that the Defendants committed trespass on GMP land beyond a reasonable doubt,” VanBenthuysen wrote.

After reviewing evidence presented in the first trial, the judge wrote, the state has substantial admissible evidence on the challenged element of lawful ownership sufficient to prevent a judge from granting a motion of acquittal judgment.

Advertisements