Braithwaite trespassing charge dismissed

Chronicle publisher Chris Braithwaite issued the following statement after his trespassing charge was dismissed today (December 5):

On the day after my arraignment on a charge of unlawful trespass, I wrote that I believed my conduct on Lowell Mountain on December 5, 2011, satisfied the dictates of common sense and the ethics of journalism.  What remained was the daunting task of demonstrating that it was also within the law.  That task came to a successful conclusion today.

It is my hope that journalists who find themselves in a similar situation will bear this case in mind when they are ordered to leave the scene of important public event.

And I hope that police officers will bear this case in mind, when they encounter journalists at the scene of significant public events who are just trying to do their job.

I regret that the documents which would help to explain the state’s decision to dismiss my case remain under court seal.  The Chronicle has asked the court to release these documents, and I hope that my colleagues in journalism will join me in an effort to make this information public.

Below is the story that ran in the newspaper this week (printed in the morning just before the case was dismissed):

by Paul Lefebvre

copyright the Chronicle December 5, 2012

NEWPORT — A jury has been picked for the trial of Chronicle publisher Chris Braithwaite who was arrested as a reporter covering a wind protest on Lowell Mountain roughly a year ago.

The trial is scheduled to start next week on Thursday, December 13, and is expected to last a day.

The trial’s start-up date may be delayed due to a motion filed Tuesday by defense attorney Phil White, asking the charges be dismissed for lack of evidence.

The evidence offered in support of the motion has been largely redacted as a result of the court’s protective order on internal GMP documents subpoenaed by the defense.

Mr. Braithwaite, 68, of West Glover is accused of unlawful trespass for allegedly refusing to obey a police order to leave a mountaintop site while covering demonstrating protesters on December 5, 2011.

Known as the Lowell Six, the protesters were demonstrating against a 21-turbine wind project being built by the utility Green Mountain Power (GMP).  A jury this summer found each of the protesters guilty of unlawful trespass.

Mr. Braithwaite was arrested on the same day and at the same place as the protesters.  But the two cases went their separate ways over an issue whose resolution still remains uncertain.

Presently pending before the court is the issue of whether Mr. Braithwaite will be tried as a private citizen or as a member of the working press who was arrested while doing his job.

Since his arraignment last December, Mr. Braithwaite has asserted that he had only gone to the mountain that day to do his job as a reporter.

Early in the case, Mr. White tried to get the charge thrown out on constitutional grounds, arguing that Mr. Braithwaite had gone to the mountain as a journalist “to cover a protest.”

And as a member of the working press he “should enjoy a special right and privilege under the First Amendment of the United States Constitution to cover protest on private property and the government response,” argued Mr. White.

Mr. White was unable to cite any case law in support of his privilege argument and his motion failed.

“There is no legal authority” that gives a member of the working press “privilege to trespass on private property,” wrote Judge Robert Gerety Jr.

Last week, however, the argument was rekindled as both sides prepared for trial before a new judge who recently began his term in Orleans County Superior Court.

Judge Howard VanBenthuysen is expected to rule on a motion this week that will determine if jurors will get to hear defense arguments that a working reporter has special privileges when it comes to gathering news.

Mr. White has put the names of two Northeast Kingdom journalists on his witness list:  Ross Connelly, publisher of the Hardwick Gazette; and Robin Smith, a reporter for the Caledonian-Record.

The state, in turn, has asked the court to strike the two journalists from the list.

Prosecutor Sarah Baker wrote in her motion that neither individual “was a witness present at the time of the offense.”

A deputy state’s attorney with the county, Ms. Baker has asked the court “to exclude any witness whose testimony is offered solely as evidence of a privilege or right of press to be on private property without permission to report on a state response.”

While the judge’s decision is still pending, he did allow Mr. White during last Friday’s jury draw, November 30, to question prospective jurors over how they view the press’s role in a democracy.

For example, the defense attorney asked one juror how important it is for the press in a democracy to report the news.

“I feel strongly that the press have an important role in the democratic process,” she replied.

One juror said she often found the news coverage “very biased.”

But another who was the subject of a news story disagreed.

“They wrote what they saw fit, and I liked what they did,” he said.

Support among members of Mr. Braithwaite’s profession has been slight, with the exception of two Northeast Kingdom newspapers.

Mr. Connelly, who publishes the Hardwick Gazette, spoke out strongly immediately after the arrest in an editorial that said the press must have access if it is to report the news.

“Had Braithwaite not been at the protest site, the press would not have been able to report on the behavior of the protesters or the… police enforcing a public trespass order, sanctioned by the state courts and enacted by the State legislature.”

Mr. Connelly ended the editorial by saying officials were undermining the democratic process “when they sanction the arrest of journalists for doing their jobs.”

Vermont Press Association Executive Director Mike Donoghue acknowledged in an e-mail Tuesday that the arrest could have a chilling effect on the ability of the press to gather news.

“The press has the responsibility to report the news as it happens,” he said.  “The public, who can’t always be present, expects us to be their representatives monitoring government in action.  And that is a privilege.”

Caledonian-Record publisher Todd Smith suggested in an interview last Friday that regional bias may have played a role in the lack of attention the case has received.  He said around the state the Northeast Kingdom is seen as the “red-headed stepchild” and that the Vermont media in general were “a little busted” as a professional organization.

“I support Chris’s principles in going after this, and avoid agreeing to any plea,” said Mr. Smith.  “Journalists have to get access to a site and bear witness to do their job.”

Questions about access to the site and GMP’s role with the press may come to light during the trial, or even sooner.

Last week the court signed a protective order that allows only the prosecutor and the defense to see confidential communications between GMP and others regarding the Lowell Mountain project.

Among other communications, the material to be examined includes documents and internal e-mails created between September 1, 2011, and January 31, 2012, pertaining to “press access or arrest of trespassers on the Project property.”

As a result of the defense request, GMP is required to turn over any documents mentioning Mr. Braithwaite or the Chronicle.

Mr. Braithwaite editorialized repeatedly against the project in his paper.  According to the protective order, GMP received the paper during the September and January time frame.

What the documents and e-mails say may be revealed if Mr. White prevails in his pre-trial motion to dismiss the charge against his client.

“Based on their obvious relevancy and the lack of any corporate interest to keep them sealed, we would respectfully request that they be unsealed by order of the court,” he wrote in his latest motion that was filed this week.

That request exists alongside with another, asking for a pre-trial evidentiary hearing in which GMP officials would be required to give testimony.

The attorney also renewed an earlier argument that dismissal of the charge would be in the interest of justice.

contact Paul Lefebvre at paul@bartonchronicle.com

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Statement from attorney Phil White, Esq.:

I’m pleased and thankful that this case has been dismissed by the Orleans County State’s Attorney’s Office.  Anytime a reporter is arrested while covering the government’s arrest of protesters, it is a serious matter.  It raises fundamental concerns about the freedom of the press to act in its constitutionally recognized role as The Fourth Estate.

We have argued that when property rights clash with First Amendment Rights of the working press (particularly when it is acting as the Fourth Estate covering transactions of government), a balancing test should be applied (as it often is when constitutional interests collide).  That issue will not be reviewed in this case any further.   Chris Braithwaite and The Chronicle, to their credit, were fully prepared to seek review of any conviction by the Vermont Supreme Court and even The United States Supreme Court.   It has been an honor to represent him.  And, I hope this discussion will continue.

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