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

For more free articles from the Chronicle like this one, see our Editor’s Picks pages. For all the Chronicle’s stories, pick up a print copy or subscribe, either for print or digital editions.

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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Anna Baker was a brilliant artist with a comic touch

copyright the Chronicle, August 8, 2012

World of Fantasy, The Life and Art of Anna P. Baker, by Beryl Hutchinson and Roz Hermant.  Self-published.  185 pages in paperback.  $59.95.

Reviewed by Chris Braithwaite

I need to begin this review by confessing my bias.  Anna P. Baker, the subject of this richly illustrated work, was both a close friend and an important contributor in the Chronicle’s early years, when it remained to be seen whether it would sink or swim as a community newspaper.

That it swam, I believe, was due in large measure to one of the most unlikely duos to ever put ink to paper.  Loudon Young was a dairy farmer all his life, and his role in my life as friend, neighbor and mentor in the ways of rural Vermont predated the first Chronicle by four years.  When I asked him if he thought a weekly newspaper in Barton would have a chance of survival he said he didn’t think so.  Given his preference for color in language, he more likely said that such an enterprise would have a snowball’s chance in hell.

So it was a considerable surprise when he volunteered a column for the first issue, and a greater surprise to discover that this highly accomplished talker could also write, and that his writing was very funny, indeed.  His back-page column immediately became a weekly feature in the paper.

We didn’t make Anna Baker’s acquaintance until we were moving the office from a farmhouse in East Albany to an old barbershop on Barton’s Upper Main Street, and she wandered in to find out what the devil her new next-door neighbors were up to.

She found us amusing.  But then Anna found most things in life amusing.  That knack, along with the most exquisite good manners I have encountered in another human being, were pretty much what got Anna through an otherwise challenging life.

Anna told us she was an artist.  But I don’t think she mentioned that she was also a cartoonist.  She was a good enough cartoonist that, as a 16-year-old art student at a London, Ontario, technical school, she was interviewed for a possible career in animation with the Disney Studios.

I didn’t know that last detail until I read this book.  At any rate, it wasn’t long before Anna brought in a cartoon she thought we might like to publish.  Her chosen subject?  None other than the above-mentioned Loudon Young.  Loudon’s profile — a sharp chin often decorated with a bit of a beard, a sharp and substantial nose — was a cartoonist’s dream.  But it was Loudon’s humor that captured Anna, because his ear for what was funny about the most ordinary, everyday situations so exactly matched her eye.

Both of them thought there was something fundamentally funny about the common cow.  Loudon wrote about them constantly.  In her book, Beryl Hutchinson reproduces the first Baker painting she acquired.  Called Pent House Farm, it was executed at that same technical school, which Anna attended in 1944-45.  It’s a whimsical, wonderfully busy urban landscape with people farming on the rooftops of a couple of apartment buildings.  Ms. Hutchinson is careful to point out that it includes, atop one roof, Anna Baker’s first cow, a Holstein.

Anna’s renderings of Loudon and his cows appeared in many Chronicles over the years that followed.  They accompanied the best of Loudon’s columns in the Chronicle’s first book, Off Main Street, West Glover, Vermont, and the dairyman and his Holsteins were featured in a series of calendars she drew for the paper.

A generous selection of these cartoons is included in World of Fantasy.  But there are also many of her “serious” works — whimsical, intensely detailed, richly colored paintings that will delight the fans who have an Anna Baker hanging on the living room wall, and surprise those who know her work only through the Chronicle.

As we grew to know Anna, it became obvious that we were in the presence of an artist of great talent and considerable reputation.  Her works caught the eye of critics and connoisseurs wherever they were displayed.  That her reputation didn’t reach further was to some degree her own fault.  She volunteered once that a friend, a sophisticate in the business of art, had told her she couldn’t find success as an artist if she insisted on living in a backwater like Barton, Vermont.  She needed to be in New York City.  Anna acknowledged the advice as sound, and chose not to take it.  Whatever glue held her to the Northeast Kingdom, we are all the richer for it.

Beryl Hutchinson enjoyed a friendship with Anna Baker that went back to high school.  Her book includes a photo of a schoolgirl softball team named the Eagles with Anna in the front row, Beryl in the back.

Thus Ms. Hutchinson was the ideal person to stitch together this fully illustrated biography of the artist.  She opens with a surprising revelation about Anna’s origins — a surprise best left to her readers — and takes us through the artist’s school days, her formal education at the Art Institute of Chicago, which she entered in 1951, and the early teaching career that led to her friendship with Bunny Hastings, daughter of a prominent Barton physician.  That friendship brought Anna to Barton, and lasted the rest of Bunny’s life.

Anna beat cancer once, but lost the second round and died in 1985, at just 56.

To all of those who still miss her kindness, her wit, and her great talent, this book will serve as long-awaited consolation.

To buy World of Fantasy, go to “contacts” at  www.annabaker.net, or see www.blurb.com/bookstore/detail/3334768.

contact Chris Braithwaite at chris@bartonchronicle.com

For more free articles from the Chronicle like this one, see our Reviews pages. For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital  editions.

 

 

 

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Safe Choices 19 – St. Francis wants to take over his own life

by Chris Braithwaite

copyright the Chronicle June 23, 2010

NEWPORT — George St. Francis wants to get out from under the control of his guardian and take over his own life.

Meanwhile, he faces a court process that could severely limit the freedoms he currently enjoys.  He could be returned to the control of a state guardian and be subjected to 24-hour arm’s length supervision, something like a prison without walls.

Which way his life will go is up to Judge Walter Morris, who had been conducting a series of Family Court hearings into his case.

A motion seeking Mr. St. Francis’ emancipation as a competent adult has been filed by his attorney, Susan Davis.

If he were to grant the motion, Judge Morris would essentially end any state or court supervision of Mr. St. Francis.

And it would leave unresolved a question that clearly worries the judge, and other state and mental health practitioners who have dealt with him:  Is he a potential sex offender, and as such a threat to public safety?

As he sat on the bench Thursday, June 17, at the latest of a long series of hearings on Mr. St. Francis, Judge Morris faced two radically different views of the man.

His lawyer and his advocates, his wife and his friends, see him as a victim of a system that exaggerated both his disability and his potential to harm others.  As a result, they said, Mr. St. Francis spent 14 years in a system that confined him, humiliated him, over-medicated him with psychiatric drugs, and kept him far away from “normal” people and relationships.

On Thursday his lawyer, Susan Davis, went a step further and maintained that her client is not mentally retarded.  It was that diagnosis, accepted by a Superior Court judge in 1996, that cost Mr. St. Francis his freedom and put him in the hands of a program that tried to help him while, at the same time, protect the public from him.

On the other hand, Judge Morris must consider a file on Mr. St. Francis that runs to 1,100 pages, and apparently contains allegations and evaluations which raise the alarming possibility that, left to his own devices, he could become a sex offender.  Although the Chronicle has been granted limited access to the Family Court proceedings, which are normally held behind closed doors, the newspaper is not privy to the documents which support this view of Mr. St. Francis.

A year ago his problems seemed close to resolution.  Judge Morris’ predecessor in the case, Judge Robert Bent, had agreed that Mr. St. Francis should be released from the control of his state guardian.  She was replaced by Janet Reed of Albany, an advocate for Mr. St. Francis and a determined foe of the program, Safe Choices, that controlled his life for years.

Run by Northeast Kingdom Human Services, the local community mental health agency, Safe Choices was created to deal with sex offenders who are so mentally handicapped that, as a constitutional matter, they cannot be tried for their crimes.

Mr. St. Francis does not fit that description.  He is one of several men who were sent to Safe Choices because a guardian or family member was worried about their sexual behavior.

And far from being too mentally disabled to stand trial, Mr. St. Francis has on at least three occasions been the subject of minor criminal charges brought by his keepers in Safe Choices.

On the day she took over as Mr. St. Francis’ guardian, in late July last year, Ms. Reed permitted him to marry Kathy McCammon, a woman who, state officials have repeatedly asserted, abused him in 2003 by sleeping with him while serving as his caregiver.  That allegation has been investigated, but never proven, and both Ms. McCammon and Mr. St. Francis deny it.

Under a carefully negotiated court order, Mr. St. Francis was to be treated by Sterling Area Services, a mental health agency based in Morrisville, and to live under the close supervision of a couple in Northfield.

When Mr. St. Francis failed to keep an appointment with a Sterling therapist and moved in with his new wife, the agency terminated its treatment.

Judge Morris ruled in May that Ms. Reed violated the court order when she permitted her ward to marry and change his residence.  Among the possible consequences for her, the judge wrote, could be a finding of contempt of court.

Among the consequences for Mr. St. Francis, he said, could be a return to state guardianship.

But in court last week a spokesman for the state resisted that possibility.

Assistant Attorney General Jennifer Myka was there to represent the Department of Disabilities, Aging and Independent Living (DAIL), which oversees the state guardian system.

“It would be extremely difficult, if not impossible, for the department to take over Mr. St. Francis,” she told Judge Morris.

Given all that’s happened between the personalities involved, she said, “I just cannot see how we can interject ourselves in this… in a way that would be productive.”

Nor did Sterling Services show any appetite to resume treatment of Mr. St. Francis.  “Sterling doesn’t believe it can get involved at this time,” said its attorney, Robert Halpert.

The private guardianship has failed, Judge Morris said in obvious frustration.  “The question is, what are we going to do?”

If he ordered another risk assessment of Mr. St. Francis, the judge asked, “can the department be of any assistance?””

“Certainly, the department could arrange for another assessment,” Ms. Myka replied.

Mr. St. Francis’ attorney, Ms. Davis, tried to shape the nature of any further evaluation of Mr. St. Francis.

“It’s not the evaluation per se we’re concerned about,” she told the judge.  “The prior evaluation was based on tons and tons of records.  Many were exaggerated or false.”

A new evaluation should be done without reference to those records, she argued.

But without them, Judge Morris replied, “How could it be a competent evaluation?”

In the end, Judge Morris ordered a new assessment that would include a “psycho-sexual” evaluation.  He asked Ms. Myka to arrange for a specialist for the job, after consulting with Ms. Davis and Trudy Miller, the attorney for Ms. Reed.

Ms. Davis could obtain independent evaluations, he noted, and present those to the court.  She and Ms. Miller could also challenge the findings of the court-ordered evaluation, he added.

He set the next hearing on the matter for early August.

In the lengthy motion she filed to terminate the guardianship altogether, Ms. Davis wrote that “two separate and independent psychologists have determined George St. Francis to NOT be mentally retarded.”

Until September 2009, Ms. Davis said, the people in charge of Mr. St. Francis medicated him with Prozac, lithium carbonate, Topamax and Seroquel.  “He was taking ALL of these, concurrently, and has been for years,” she wrote.

“Side effects of these medications include drowsiness, dizziness, fatigue/insomnia, and headaches.  Side effects of the lithium include blackouts, seizures, slurred speech and confusion.  Side effects of Topamax include mental and physical slowing and delays, coordination problems, confusion, difficulty with concentration and attention.”

“Today,” Ms. Davis wrote, “clear of thought and medication, with a home, a wife, a life on the farm and the security that that brings, he no longer wants a guardianship of any kind.”

Though he has attended the hearings on his fate, Mr. St. Francis has never had an opportunity to testify.  On Thursday, waiting in the corridor for proceedings to start, Mr. St. Francis chatted with his guardian’s husband, Alan Reed, who seems to be a particular friend.

Mr. St. Francis, a large man with a quick smile and a keen sense of humor, sought detailed advice from Mr. Reed on how to deal with a tractor that had broken down on his wife’s farm.

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Safe Choices 20 – Judge insists on psychosexual evaluation

by Chris Braithwaite

copyright the Chronicle July 21, 2010

NEWPORT — At a hearing Monday in Orleans Family Court, Judge Walter Morris declined a formal request that he change his mind, and insisted that George St. Francis undergo a psycho-sexual evaluation.
In his efforts to win his freedom from court and state control, Mr. St. Francis faces official concerns that he is a potential sex offender.  Judge Morris ordered the psycho-sexual evaluation in June as part of a more general evaluation of Mr. St. Francis, who was judged to be retarded by a Superior Court judge in 1996, when he was 18.
His lawyer, Susan Davis, argues that Mr. St. Francis is neither dangerous nor retarded.  In the “motion for extraordinary relief” she filed with the court on July 13, Ms. Davis argued that the court lacked jurisdiction to subject her client to a procedure which she called “intimate, probing, distressing and invasive.”
However, referring to an evaluation of Mr. St. Francis that was conducted in October 2009, Judge Morris said “there is an evaluation that frankly says there is a high degree of risk.”
He added, however, that he believes the specialists who treat and measure sexual aberrations have dropped a particularly controversial piece of apparatus called the “penile plethysmograph.”  In case they haven’t, he added, he would order that the plethysmograph not be used on Mr. St. Francis.
The device was used to measure a man’s response to particular types of sexual stimuli.
In her motion, Ms. Davis said that “a psycho-sexual evaluation may include up to six hours of interrogation, forced viewing of sexually suggestive or violent materials, and in some cases linking the individual’s private parts to electronic probes to determine his or her response to sexual stimuli.”
One former client of the Safe Choices program, which imposed its treatment on Mr. St. Francis for years, told the Chronicle that he had been subjected to a plethysmograph test.
Judge Morris also declined to grant Ms. Davis’ request that he put a hold on the Family Court proceedings while she appealed his decision to the Vermont Supreme Court.
Monday’s hearing was a small part of a case that has been before Family Court for well over a year.
Mr. St. Francis was under the control of a state-appointed public guardian, and a reluctant client of the Safe Choices program when it began.
The court put him under the control of a private guardian, Janet Reed, who is a determined critic of the Safe Choices program and its methods.
But Judge Morris has ruled that Ms. Reed violated the court’s order when she permitted Mr. St. Francis to get married and move out of a Northfield home in which he was to be closely supervised.
The court is struggling with the question of what to do with Mr. St. Francis next.
Meanwhile, Ms. Davis is prepared to present evidence that her client, while not of average intelligence, does not meet the low standard required to deny him the freedoms of an ordinary citizen.
Testimony from expert witnesses for Mr. St. Francis is expected at a hearing in early August.
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Lowell Six wind turbine protesters convicted of trespassing

Eric Gillard, the brother of one of the Lowell Six, holds a sign in front of the courthouse. Photo by Paul Lefebvre

by Paul Lefebvre

copyright the Chronicle 8-22-2012

NEWPORT — It took a jury of nine women and three men four hours to find wind opponents known as the Lowell Six guilty of unlawful trespass, following a one-day trial here in Superior Court.

The verdict appeared to reflect a trial in which a straight law and order issue trumped a disputed property boundary.

Conflicting testimony over the dispute may have confused the jurors as about an hour or so into their deliberation, they sent a note to the judge.

They wanted to know if there could be a legal owner when a property is in dispute.  And if the dispute was still current.

Trial Judge Martin Maley complimented the quality of the questions, but ruled each irrelevant.

“Do the best you can based on the evidence you heard,” he instructed them.

Disputed property boundaries were the key to the defense case:  If the state could not prove that the protesters were standing on property that was in the lawful possession of Green Mountain Power (GMP), then the defendants could not be convicted of unlawful trespass.

The prosecution argued that GMP was in lawful possession of the property, and that the protesters had broken the law when they refused to leave the land that had been posted by the company.

The trial was the first to be held involving protesters against the Lowell wind project that is being constructed by GMP.

Each of the six were arrested on December 5, 2011, when they refused police orders to leave posted property on Lowell Mountain while blocking the path of heavy construction vehicles.

Although the six presented their case as a group, the jury found each guilty as individuals.

Six more protesters are scheduled to be arraigned next month for a similar confrontation on the same mountain earlier this month.

Held Wednesday of last week, August 15, the trial was surprisingly silent on the underlying and highly charged issue that caused the defendants to break the law.  Before the jury entered the courtroom, Judge Maley warned he would only allow limited testimony on why the defendants were on the land.  And nothing, per se, on wind itself.

The jury, he said, knew what the case was about.  “It’s not a secret to them.”

So wind remained the elephant in the room:  the one everyone knew was there and agreed not to see.

Surprisingly, the only one to raise it as an issue was prosecutor Sarah Baker, when she sought to challenge the intent of the defense’s star witness, surveyor Paul Hannan of Calais, formerly of Holland and at one time a Kingdom legislator who served in the House.

Placed on the stand as an expert witness by defense attorney Kristina Michelsen, Mr. Hannan was prepared to provide the rock-bottom kind of testimony the defense needed to support its case.

Mr. Hannan testified that he had 31 years of experience as a surveyor and the credentials to qualify as an expert.  The rules of evidence, however, say that either side can challenge an expert’s witness.  And when her turn came, Ms. Baker proceeded vigorously.

First she asked Mr. Hannan about his association with Sterling College, and learned that during the years 1990 and 1991, he was one of the faculty members who accompanied students on three-to-four-day expeditions on Lowell Mountain.

The prosecutor pressed on.  Did he have any prior knowledge of Don Nelson — who allowed the students to use his property and who also is in a property dispute with GMP concerning the boundary line between his land on the mountain and the adjourning site where the utility is constructing its wind project.

No, said Mr. Hannan.

Ms. Baker may have thought she had found a chink in the defense’s armor when she abruptly asked the witness if he had any association with any anti-wind group.

Instead, the question brought a prompt objection from attorney Michelsen, along with a few hisses and murmurs from the 35 or so spectators in the gallery, a largely anti-wind crowd.

Judge Maley sustained the objection and Ms. Baker sat down, taking with her any references that the industrial wind project on Lowell Mountain had anything to do with the case.

There was a stirring in the closing moments of the trial when one of the defendants, Dr. Ronald Holland, took the stand.  The doctor’s name had surfaced earlier in the trial when Deputy Sheriff Phil Brooks testified for the state.

Of the ten protesters on the mountain that day, the deputy said he only knew Dr. Holland from previous personal and professional encounters.  He went on to testify that about two weeks prior to the December 5 confrontation, he received a call at home from Dr. Holland.  The doctor, according to the testimony, told the deputy he was going to the mountain that day to protest and wanted the deputy to arrest him.

“I informed him I was off duty and it wasn’t going to be me,” Deputy Brooks testified, adding that he passed what he characterized an “odd request” on to the State Police, who didn’t do anything either.

That testimony was before the jury when Dr. Holland took the stand late in the day.  The 67-year-old resident of Irasburg told jurors that days prior to the confrontation with police, he had gone onto the site and measured with twine the distance where he believed Mr. Nelson’s property ended.

And on the day of the confrontation, he testified he went to the limit of that measured distance.

But in a question that had nearly everyone in the courtroom leaning forward on the edge of their seats, Ms. Michelsen asked the emergency room doctor why he had climbed to the top of Lowell Mountain on December 5, 2011.

He paused and bowed his head a moment before answering that he had gone there to “protest the taking of Don Nelson’s property.”

Defendant David Rodgers, 69, of Craftsbury followed Dr. Holland to the stand and testified that he too believed he was on the Nelson property when police moved in to arrest him.

He testified that Dr. Holland had tied a block of wood to the end of a string as a means of measuring the property’s boundary.  And that he was “very careful not to” trespass on the land GMP is leasing to erect its 21-turbine wind plant.

The procession to the stand might have continued had not the prosecution agreed to stipulate that the remaining four defendants had followed the doctor’s lead.

But if the defense thought a protest over property rights could overturn the confrontation that followed, the jury saw it differently.  Nor did any witness refute or challenge the deputy’s testimony over what happened that day.

Deputy Brooks testified he received a call around nine that morning from GMP, informing him that protesters were on the mountain blocking heavy equipment from working on the wind project.  Police arrived roughly two hours later, and observed that the group was blocking cranes and big trucks.

“They were stopped on either side of where the defendants were,” he testified.

Deputy Brooks testified that prior to December 5, GMP had shown him a map of the project and its property boundaries.  And when confronting the protesters, he said he gave everyone the opportunity to step back behind the property line between GMP and the Nelson farm.

Of the ten protesters, three complied with a police order to step aside.  Six refused and were placed under what sounded like a gentleman’s arrest.  The deputy said he chatted cordially with the defendants and discussed everything but the project going on around them.

“I limited myself to that,” said Deputy Brooks.

The biggest problem police encountered that day, the deputy added, was finding a way to transport their prisoners off the mountain.

Police also arrested a seventh individual, Chronicle publisher Chris Braithwaite, who is challenging his arrest on grounds he was there doing his job as a reporter.

GMP’s intent to keep people off the site and the property it has under lease was deliberate and thorough, according to its project manager Charles Pughe, who also oversaw the posting.

“We cleaned out several stores,” he said, speaking of the no trespassing signs the company purchased.  “We had to have so many of them.”

Mr. Pughe testified that the land was initially posted for safety and to keep hikers out of harm’s way.  But he also noted that problems with people at the site began appearing sometime in October, as campers began to gather on the neighboring Nelson land.

Terms of the lease gave GMP authority to exclude or allow access to anyone the company chose, he said.

Mr. Pughe was off site the day the protesters were arrested.  But under cross-examination by Ms. Michelsen, he said, he could tell from photographic evidence — including photographs taken by the arrested journalist — that the protesters were on GMP’s leased property at the time of their arrest.

He estimated the face of the turbine would be about 200 feet away from the Nelson boundary line.

From the moment he took the stand it was evident that Don Nelson was not going to be a friendly witness.

He gave mostly monosyllabic responses to the prosecutor’s questions, and when asked to read a document, he shrugged and said he didn’t have his glasses.  That brought a query from the bench

“Need your glasses, Mr. Nelson?” asked Judge Maley.

“Don’t have them with me,” replied Mr. Nelson.

The prosecutor decided to try a different tack by asking the witness if he had given Dr. Holland permission to go on his property.

“My land is open.  People come and go,” he replied.  “I don’t invite or not invite.  We don’t post it.”

When Ms. Michelsen’s turn came to ask the questions, Mr. Nelson said that Dr. Holland had come to see him about the boundary dispute, and that he had provided him with the coordinates that were in disagreement.  According to his testimony, the dispute began years ago with the landowner who leased the land to GMP.  At the time, the witness testified, there was a difference of roughly 420 feet.

For its final witness, the state put on the surveyor who recently bought out a surveying business in Derby Line that surveyed the Nelson property several years ago in hopes of resolving the boundary dispute.

Andrew Nadeau testified that the previous owner had surveyed the property in dispute in 2007, and that he had spent in excess of two weeks surveying it as well.  But the surveyor who spent the longest time on the stand turned out to be the expert for the defense, Mr. Hannan.

Throughout his testimony, Mr. Hannan repeatedly testified there were fundamental mistakes in the 2007 survey — that affected the boundaries of lots leased by GMP.

He told jurors that in surveying the same ground, he found that markers had been inappropriately defined.  He said there must be corroborating evidence to define a marker or monument that had been used in the past when the land was first surveyed.  And such markers, he added, could be used to determine boundaries.

“When is a stone pile a stone pile or a monument?” he asked at one point.

Jurors already had heard from Mr. Nelson that surveying is not an exact science, and depends in part on the quality of surveys done in the past.  Mr. Nelson noted that he and his neighbor had tried to settle survey discrepancies on their abutting lands through an agreement.  Their boundary dispute was rekindled, however, when the agreement came unraveled.

Mr. Hannan testified that in surveying the land for the Nelsons, he found almost no markers on the ground that were left when the land was first surveyed in 1790.  And he told the jurors that the monuments defined by the 2007 survey were inaccurate.

Closing arguments were short, lasting about five minutes apiece.  Each attorney offered similar arguments to those they had made in their opening statements.

The verdict clearly took the defense and its supporters by surprise.  After asking the judge to poll each juror for a verdict, Ms. Michelsen said she would be filing post trial motions.  The court gave her ten days to submit them.

Prosecutor Baker said she would be requesting a restitution hearing, which means the state will try to convince the court to order the defendants to pay compensation to GMP.

The late hour verdict led the defendants to call off a press conference they had planned to hold at the conclusion of the trial.

In a press release Monday, Dr. Holland was quoted as saying:

“We are obviously disappointed with the verdict but respect the jury’s efforts. This is, and will continue to be, a complex case that rejects the simple and disingenuous offerings of Green Mountain Power.  We will continue to educate Vermonters on the science and math of ridgeline wind-generated electricity.”

As Mr. Pughe was walking away from the courthouse, he said he hoped the verdict would make his job easier.

The remaining four defendants of the Lowell Six are:  Ryan Gillard, 23, of Plainfield; Suzanna Jones, 50, of East Hardwick; Ann Morse, 48, of Craftsbury; and Eric Wallace-Senft, 46, of West Woodbury.

contact Paul Lefebvre at paul@bartonchronicle.com

For more free articles from the Chronicle like this one, see our Editor’s Picks pages.  For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital.

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Tractor-trailer with turbine tips over

A state trooper measures the length of the path the upended trailer’s wheels made in the roadside grass. Photos by Chris Braithwaite

copyright the Chronicle July 25, 2012

by Chris Braithwaite

The bottom section of a massive wind turbine bound for Green Mountain Power’s Lowell Mountain project tipped over Thursday, July 19, when it encountered a paving crew on Interstate 91.

The interstate was closed to southbound traffic for about three hours Friday morning while a crane retrieved the long white tube from the ditch and put it on a truck.  The load made it to the job site on Route 100 south of Lowell Village just before noon on Friday, according to Phil Brooks, chief deputy of the Orleans County Sheriff’s Department.

The highly specialized tractor-trailer, owned by Lone Star Transportation, was in the passing lane, just north of the Orleans exit, when a left rear tire left the pavement and hit soft ground.  Tire marks in the roadside grass indicate that what followed must have been an agonizingly slow catastrophe.  The marks moved ever further from the pavement, ever lower down a gentle slope for 500 feet until they came to the trailer, its rear wheels overturned in the ditch.  The tractor remained upright.

Speed was not a factor, State Trooper Rajesh Hailey said in his press release, and the driver, Jimmy Maddox of Gainesville, Texas, was not hurt.

Deputy Brooks said a crane was immediately dispatched from Desrochers Crane Service in Derby.  It was unable to lift the tower section, but did assist a larger crane that arrived early Friday from Massachusetts, Mr. Brooks said.  The interstate was closed at about 8 a.m. to allow space for the big crane to set up.  Once that was done, Mr. Brooks said, it took only half an hour to recover the tower section.  The highway was reopened at about 11 a.m.

A section of a wind turbine destined for Lowell Mountain rests in the ditch beside Interstate 91, just north of the Orleans exit.

Under the terms of its permit and state law governing overweight loads, Mr. Brooks said, Green Mountain Power’s contractor can use the highways from half an hour before sunrise to half an hour after sunset.  However, loads must lay over in a “safe haven” between 7 and 8 a.m., noon and 1 p.m., and 4 to 5 p.m., Mr. Brooks said.  Thursday’s load had just pulled out of the Coventry rest area when the accident occurred a few miles south, at 5:16 p.m.

Opponents of Green Mountain Power’s project, who held up a truck for about two hours on July 16, may continue to try and block the loads.  The Mountain Occupiers, a group that has spearheaded several acts of civil disobedience in opposition to the project, scheduled a “civil disobedience training” in Craftsbury on Tuesday evening, July 24.

In an e-mail announcing the training, the group said:  “As our powerful actions blocking the turbine trucks in Lowell showed, our cause can draw crowds, media, support, and even negotiate with the law.  We don’t have to be bystanders to the destruction of our state.  The time for action is now!”

Two protesters were arrested on July 24 after they stepped in front of a truck just before it turned into the Lowell site.  They were cited for disorderly conduct, but released from custody after negotiations with police in which protesters agreed to clear the highway.

contact Chris Braithwaite at chris@bartonchronicle.com

For more free articles from the Chronicle like this one, see our Editor’s Pick page.  For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital.  

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Protesters stop Lowell turbine truck

A Lowell wind project protester confronts State Police Corporal Dan Kerin as he tries to clear people off Route 100 Monday. Opponents of the Green Mountain Power project stopped a truck hauling a section of a turbine tower for about two hours before a compromise was negotiated with police. Our story starts on page nineteen. Photos by Chris Braithwaite

copyright the Chronicle July 18, 2012

by Chris Braithwaite

LOWELL — Though it was billed as just a “rally” and an opportunity for opponents of the Lowell Mountain wind project to “greet the turbines” as they arrived, Monday’s confrontation here turned into a brief but intense exercise in civil disobedience.

Gathering across Route 100 from the gate to the 21-turbine wind project at 9 a.m., protesters seemed content to wave signs and sing songs that condemned the project.

But when a truck hauling a long section of turbine tower finally appeared, a handful of protesters rushed into the road and stopped it.  The quick arrest of two of them seemed only to draw others onto the highway in front of the idling truck.

Two Lamoille County deputies who had been hired by the project’s owner, Green Mountain Power, tried to “walk” the truck through the protesters, pushing them aside as they encountered them.  But that proved to be a futile exercise that one demonstrator described later as “herding an amoeba.”  Demonstrators flowed around the deputies to post themselves in front of the truck and bring it, once again, to a halt.

A group of Bread and Puppet performers had come to the scene in the Glover theater company’s distinctly painted bus, and their banners and fiercely beating drums brought fresh resolve to the protesters.  As the two deputies and uniformed security guards at the site stood by in frustration, the crowd chanted “Shame on you!” and “Turn it back!” at the bright red truck and its hapless driver.

As protesters line Route 100, watched closely by police officers, the turbine section finally pulls onto Green Mountain Power’s construction site.

It took some time for the first State Police officer to arrive.  And when Corporal Dan Kerin stepped out of his cruiser he encountered the same tactic that had confounded the deputies.  Each protester in turn yielded to the corporal’s direct order to clear the road, then stepped back onto the pavement when he moved on to the next protester.

But State Police officers started to arrive in force, backed up by Orleans County deputies and officers with the U.S. Border Patrol, Fish and Wildlife and VTrans.  Sets of hand restraints were brandished, and police dogs were sighted.  An onlooker who scouted the area on his bicycle reported counting 22 law enforcement vehicles at the scene.

Lieutenant Kirk Cooper, commander of the State Police Derby barracks, stepped into the middle of the crowd of demonstrators and appealed for a peaceful conclusion.

“You’re perfectly entitled to voice your non-support,” he told the demonstrators.  “But other people have to use this road.  That’s where we get in the middle.

“I’m not gong to give you a lot a crap,” the lieutenant continued.  If they didn’t move, he told the demonstrators, “we’re going to be forced to move you.  I honestly don’t want to do that.”

The officer’s plea was seconded by one of the Lowell project’s most determined opponents, Don Nelson.

“We’ve made our point, boys,” Mr. Nelson said.  “It’s time to back off.”

Some protesters heeded that advice, but some did not.  Police, gathered in a clump just beside the idling truck, seemed ready to move.  But leaders of the group were clearly anxious to avoid the confrontation that seemed moments away.

Pat Sagui, Steve Wright and Stephanie Kaplan, a lawyer who worked with opponents of the Sheffield wind project, talked to Lieutenant Cooper and Lamoille County Sheriff Roger Marcoux.

The deal they struck was that protesters would clear the highway if the sheriff released his two captives.  They were a key leader of the opposition, Ira Powsner, and his younger brother, Jacob.

Ira Powsner of Ira is placed under arrest moments after stepping out onto Route 100 to stop a truck carrying part of a wind turbine.

After they were issued citations to appear in court on September 11 to answer charges of disorderly conduct, the brothers stepped out of the sheriff’s vehicle to the cheers of protesters.  They sang “Happy Birthday” to Ira Powsner on the occasion of his twenty-sixth birthday.

The protesters returned to the side of the highway, the officers lined up to keep them there, and the truck finally hauled its long, white load through the gates and onto the construction site.

Watching from just inside that site, Lowell Selectman Richard Pion was less than pleased by the compromise.

“They ought to take half those people to jail,” he said.  If police lacked the vehicles to get them there, he added, “they should go get a school bus.”

“They can demonstrate, but there’s no need of blocking traffic,” Mr. Pion said.  “I thought this was the land of democracy,” he added, noting that a solid majority of Lowell citizens voted for the wind project.

Like most who tried to count the protesters, Mr. Pion estimated that there were about 100 of them.  “That shows there’s only a handful that’s opposed to this,” he said.

When traffic finally started to move past the Green Mountain Power gate, it consisted only of a handful of heavy trucks that had been held up in both directions, and one Army truck driven by what appeared to be a National Guardsman.  Most traffic was apparently able to drive around the obstruction on Mink Farm Road, which loops to the west of Route 100.

While Green Mountain Power’s chief executive, Mary Powell, was not visible at the scene, Vermont Electric Cooperative’s CEO, David Hallquist, was on hand.  His utility has agreed to buy a small share of the project’s power, at cost.

Asked by a reporter if he was upset by the demonstration, Mr. Hallquist replied that he would have been disappointed if no one had shown up.  Some of Mr. Hallquist’s remarks were recorded on film by his son, Derek Hallquist.  The younger Hallquist is working with the documentary filmmaker Aaron Woolf of New York State, whose best-known work is King Corn.

In the hard hat and safety vest provided by Green Mountain Power, Mr. Woolf and his crew were easy to mistake for employees of the utility.

Standing just inside the work site, facing the demonstrators across the road, Mr. Woolf noted that if people stood on his side of the road, they were pro-wind.  People on the other side of the road were anti-wind, he continued.

“And if you stand in the middle of the road, you get run over.”

The section of turbine tower had been held up on the highway for about two hours.  And as demonstrators headed north on Route 100 after the rally, they quickly encountered a second section of tower on its way to the site, closely followed by a long, slender turbine blade.

contact Chris Braithwaite at chris@bartonchronicle.com

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Stand Against the Wind tells wind protesters’ stories

Stand Against the Wind:  Civil Disobedience in the Green Mountain State by Chris Braithwaite, Chronicle Inc., Barton, Vermont.  2012, 110 pages, softcover, $19.95.

Reviewed by Julia Shipley

copyright the chronicle May 23, 2012

No matter where you stand on the issue of installing 21 commercial wind turbines atop the Lowell mountains in Vermont’s Northeast Kingdom, whether you bristle and grieve or feel triumphant or resigned, whether you live here, in Orleans County, or in Atlanta, Georgia, whether you have been doggedly following news of the mountain occupancy or whether you feel exhausted at the very mention of the word “issue,”— whomever you are, you might find an endangered pleasure in this new book, Stand Against the Wind by the Chronicle’s co-founder and publisher, Chris Braithwaite. Those pleasures include both a textbook example of old school, shoe leather journalism built of substantiated assertions and meticulous reporting and the smithing of that information into about 2,000 utterly gorgeous sentences. One right after the other, his narrative travels in boxcars of strong, clear prose driving each of the book’s 27 chapters, and making a collective portrait of civil disobedience committed by six individuals.

The book begins with a symbolic and actual dividing line on top of Lowell Mountain.  As Braithwaite analyzes what the actual plastic tape-line divides, his litany of things divided, and the disparities presented, culminate in this lovely sentence:  The bright orange tape is a line “between a place that is so high, so cussedly strewn with deadfalls and moose shit that nobody goes there except to hunt and hike, each winter for many years to enjoy the near-wilderness experience of camping in the snow; and a mountain so convenient that a guy can drive his pickup to the top just to check the oil on a multimillion dollar machine.”

This first editorial chapter (originally published in the Chronicle) invites us to “risk feeling that you are being torn in two…up where the blasting will soon begin.”

For those of us who did not accept that invitation, the Chronicle has consistently covered the issue for months, and even years.

Although the book encompasses some key events leading up to the commencement of Green Mountain Power’s project to install industrial wind towers on one of Vermont’s northernmost ridgelines, what Braithwaite calls “a wonderful sort of nowhere, ” the book takes for its subject the actions of some concerned citizens to stop it from happening. Like a club sandwich, the book is not just lettuce and cheese, the names and the dates, the he said, and she said. There are other layers interspersed, and the meat of this feast is really found in the in-depth profiles of a half dozen protestors, whom we meet one at a time, the six people most consistently involved with using “direct action.”

“Who cares?” and “Why do they care?” But more importantly: “How do they care?” — this exploration of what care-in-action looks like, of how to gracefully express distress is certainly pertinent to everyone. For even industrial wind tower proponents surely have, at one time in their life, experienced a feeling of powerlessness against a larger force usurping and/or annihilating, something they love.

Stand Against the Wind introduces us to these complicated, intelligent, thoughtful, people, who resist the paralysis of despair and flex that constitutional right we’ve all been guaranteed: the right to express our dissent.

As we learn in the fourth chapter, this expression is first modeled by Anne Morse, who explains to Braithwaite, “The point isn’t getting arrested. The point is the direct action that leads to the arrest. I think that it highlights the problem… people coming together collectively to highlight something that’s happening that’s wrong.”

Subsequent chapters feature profiles on Dr. Ron Holland, Eric Wallace-Senft, David Rodgers, Suzanna Jones, and Ryan Gillard. These interviews feel intimate, as Braithwaite allows each person to articulate the life circumstances and experiences that informed their actions on the Lowell Mountains. Their testimony is so unadulterated, it’s as if we’ve been given access to the inner thoughts, to their minds shifting, reorganizing, each building to his or her own truth. Whereas David Rodgers comes to his decision to protest thorough an increasing urgency realized in an intuitive way, confessing “It’s not something I did methodically, it was more a sense that I need to take a stand,” for Dr. Ron Holland the route to civil disobedience was incredibly logical. His focus was the policy debate. “It’s my sense if this could be put out in a quantitative kind of way — which it can, and it hasn’t been — it would be fully obvious. ”
Although a full disclosure of the links and liaisons I have to the people within this book would supplant the space needed for this review, one disclosure seems too relevant to omit:  On November 2, 2009, almost three full years before the first dynamite charges were detonated, I sent an e-mail to Mr. Braithwaite (who, by dint of having published the Chronicle for the past 38 years is the dean of my de facto journalism school — meaning: I study his work intensely).  In the e-mail I asked, “How do you train in objectivity? You must have an opinion on some of the things you report because: these things will affect you. The Wind Towers? If you’re feeling strongly do you suppress your opinion when writing the article but blurt it out in a once in a blue moon editorial?

Mr. Braithwaite replied tersely (but gamely) the next day with, “Proposed experiment: Read the page 1 story about Lowell wind [Wind friends, foes focus on Lowell Mt. by Chris Braithwaite November 4, 2009], then decide whether the Chronicle favors or opposes wind power in general. Then read the editorial. Did you get it right?”

I deduced, by analyzing every word, examining ratios of which perspectives got more column inches and observing that wind tower proponents got to have the last word, that probably: “Braithwaite wants big wind.” (Obviously, I won’t be graduating from my self- invented J-school at the top of my class.)

Braithwaite further explained, “the reporter’s job is to understand the interests involved and lay them out coherently, like a good sports writer advancing a world series game. You can’t do that well if you let your misguided affection for the Yankees color your assessment… so you learn not to.”

This occupational hazard is tackled again in his book. Much as the footing up to the mountaintops is moose-shit slick and tricky, so Braithwaite also admits to coming “dangerously close” to slipping over the thin partition and being a protestor. Though he accepts the cup of coffee brewed by some of the mountain occupiers, a steaming cup which he describes as a “shocking luxury” on that chilly morning, he refrains from civil disobedience, realizing he cannot report on the protest if he joins them by bending over to make a cairn of the blasted rubble or carry a handful of soil to a freshly planted sapling. And though he jokes in another chapter about the sacrifices his job demands (in particular, how a bout of extended reporting kept him from fully participating in a deer camp getaway), I feel it necessary to point out that for the readers, having a newspaper like the Chronicle at all is a shocking luxury. And that Braithwaite’s actual sacrifice to forgo his expression of civil disobedience has yielded us his newspaper’s ongoing coverage of the commercial wind project, a true boon being as we live too far beyond the radar to merit extensive coverage from other media outlets.

In the book’s introduction, Braithwaite acknowledges that he is damn glad he has postponed retirement to cover what he calls “one of the best” stories in his nearly 50-year career. However, lest we take something seemingly rock solid, enduring and readily available week after week, year after year, like the familiar silhouette of the Lowells themselves for granted, I [editorial comment approaching] believe this book, along with the coverage the Chronicle has provided, are as welcome and revitalizing as a strong cup of coffee on a cold morning in the newly blasted landscape.

Stand Against the Wind will be available soon at the Galaxy Bookshop in Hardwick, Green Mountain Books and Prints in Lyndonville, Woodknot Bookshop in Newport, and at the Chronicle office in Barton. The book can be ordered now at: www.createspace.com/3869681.  Julia Shipley is the author of a poetry column about Vermont poems called “It could be Verse,” and she was the 2006 winner of the Ralph Nading Hill Award sponsored by Green Mountain Power, for which she received a cash prize of $1,500. She can be reached at her website:  Writingonthefarm.com.

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