Reporter seeks damages for arrest on Lowell Mountain

by Paul Lefebvre

copyright the Chronicle 1-9-2013

The legal fight between Green Mountain Power (GMP)  and Chronicle publisher and reporter Chris Braithwaite has shifted from criminal to civil court.

Defense attorney Phil White filed a civil complaint late last month alleging that GMP had violated his client’s civil rights when Mr. Braithwaite was arrested on December 5, 2011, for covering a wind protest on Lowell Mountain.

Mr. White charges that GMP and its agent on the site, David Coriell, “knew or should have known that Braithwaite had permission to be on the property and that, at the very least, misinformation provided by Coriell and GMP to law enforcement had caused Braithwaite to be wrongly taken into custody, arrested, and subsequently charged with and prosecuted for unlawful trespass.”

The civil complaint comes close on the heels of a ruling handed down by Judge Howard VanBenthuysen that dismissed a criminal charge of unlawful trespass brought against Mr. Braithwaite and forbids the state to bring the charges back at a later date.

In dismissing the case with prejudice, Judge VanBenthuysen noted that he failed to see how the state could bring back the charge against the journalist in light of the e-mails among GMP officials giving the press permission to be at the site.

After noting the e-mails only came into view as the case was about to go to trial, the judge wrote:  “Consent is a key element of the offense, and GMP apparently consented to the presence of media at protests, and gave instructions that the media should not be arrested.”

In her brief to the court, Deputy State’s Attorney Sarah Baker argued against dismissing the charge with prejudice, saying the state could still make a case against Mr. Braithwaite by bringing Mr. Coriell, who has since left Vermont, back to testify.

The judge concluded, however, that was stretching the point, as it was unlikely that Mr. Coriell could give testimony that would rebut the evidence found in the e-mails.

“Under the circumstances this is the rare case in which a dismissal with prejudice is appropriate, given the late revelation of consent.”

The ruling was released on December 24 and the day after Christmas, December 26, Mr. White filed a civil complaint against GMP.  Along with the complaint, Mr. White also asked the court to revise a protective order to return to GMP documents that were sealed when the criminal case was still active.

Mr. White argued in his brief that he wanted to retain the documents on the grounds they constitute evidence in the civil suit he is pursuing against GMP.  If the court grants his request, the documents would be kept from public view until further court order.

The civil suit filed by Mr. White seeks damages on four counts:  false arrest; false and malicious prosecution; fraud, slander and false report; and fraudulent concealment.

The suit asks for compensatory damages in the amount of $22,530 (Mr. White’s fee for Mr. Braithwaite’s criminal defense) along with attorney’s fees and expenses in the civil case.  The suit further alleges that Mr. Braithwaite’s civil rights were violated, and seeks punitive damages, which are characteristically sought as a deterrent.

In his discussion of the events leading up to his client’s arrest, Mr. White says that GMP anticipated Mr. Braithwaite’s arrival at the protest and spelled out a course of action for its agent at Lowell Mountain.

GMP officials, according to the complaint, “gave Coriell explicit directions to inform law enforcement that Chris Braithwaite and any other members of the working press who showed up to cover this protest had GMP’s consent to be there to cover this event and that they were not to be arrested.”

As it turned out, Mr. Braithwaite was the only reporter present at the site, and was arrested when he refused a police order to leave.  Mr. White argues that after his client was arrested, GMP failed to step forward to explain their instructions to Mr. Coriell and reverse the arrest.

Their failure to do so, the attorney further argues, violated Mr. Braithwaite’s civil rights.  The attorney said that Mr. Braithwaite, as a journalist, had written “fierce editorials opposing GMP’s commercial wind project” on Lowell Mountain.

“At all times material to this complaint GMP and its agents, including Coriell and Orleans County law enforcement officers have jointly participated in the planning and execution of arrests of protesters,” charges the complaint.

“GMP and/or Coriell were acting under the color of law and engaging in ‘state action’ when they maliciously gave the government false and misleading information with the purpose of causing the government to engage in false arrest and wrongful prosecution.”

Green Mountain Power did not respond Tuesday to a request for comment.  Nor has the company filed a response in court to the complaint.  When the possibility of a civil law suit was raised last month, a company spokesman told a reporter that any legal claim against Mr. Coriell would be frivolous.

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.

To read court documents connected to this case, please click on the links here:  No1-citation

No2-recordcheck

No3-information

No4-Sheriff’s affidavit

No5-Coriell’s affidavit

No6-Brooks affidavit

No7-Motion to Dismiss

No8-state’s response to No7

No9-Defense Memo in support of No7

No10-renewed motion to dismiss

No11-motion to dismiss with prejudice

No12-state’s opposition to No11

No13-judge’s ruling on No11

No14-civil complaint

Share

Publisher’s trespassing case dismissed

Featured

The Lowell Mountain wind towers as seen from Irish Hill. Photo by Bethany M. Dunbar

by Paul Lefebvre

copyright the Chronicle 12-12-2012

NEWPORT — A utility wind developer company that tried to do the right thing by the press appears to have shot itself in the foot when it allowed the arrest of a reporter and then failed to step forward and rectify an action contrary to company policy.

The Orleans County state’s attorney’s office last week dismissed a criminal charge of unlawful trespass brought against Chris Braithwaite, a reporter for and publisher of the Chronicle in Barton.

Mr. Braithwaite, who had been spearheading his paper’s coverage of the wind project on Lowell Mountain and the controversy it triggered, went to the site on December 5, 2011, to cover a demonstration that protesters had scheduled for the morning.

Police intervened and arrested six protesters, who became known as the Lowell Six.  A jury found each of them guilty of unlawful trespass this summer.  Mr. Braithwaite also was arrested despite his claims he only had gone to the site to cover the demonstration as a reporter.

When news of his case’s dismissal was announced last week, Mr. Braithwaite, 68, of West Glover, released the following statement:

“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.”

Dismissal came as the case was preparing to go to trial and after defense attorney Phil White subpoenaed internal e-mails that passed back and forth among officials of Green Mountain Power Company (GMP.)

The documents show that GMP intended to give Mr. Braithwaite and other reporters access to its Lowell Mountain site, where protesters were demonstrating against the construction of a 21-turbine wind project.

“Does anyone know what happened,” asked Robert Dostis, a GMP official who works with communities and who was responding to colleagues about an editorial against the arrest.

To GMP’s site manager at Lowell Mountain, he went on express surprise that an arrest had occurred.

“Frankly, I don’t understand why Chris was arrested since you gave exact instructions that he not be,” he wrote in an e-mail dated December 10.

A day later, a second official struck a similar note.

“I think now we have to put an end to the notion we tried to stop the media, when we simply did not,” wrote a GMP consultant Stephen Terry in an internal e-mail sent six days after the arrest.

He then repeated a question asked earlier by the company’s public relations officer:  “Did the leadership instruction not to arrest CB just not get relayed fast enough Monday morning?”

While release of the e-mails helped to end the criminal charge, they may have opened a new chapter in the case.

Attorney White said Monday he had asked for an apology from GMP as well as compensation for expenses and legal fees that came to $22,330.

“Had Green Mountain Power disclosed this information to the State Attorney’s Office promptly, Chris never would have had to undergo a year facing criminal charges,” wrote Mr. White in an e-mail.

“Instead, GMP sat on its hands and did nothing, absolutely nothing.”

Mr. White said he hoped that GMP would “do the right thing” by apologizing and paying Mr. Braithwaite.

But that appeared unlikely Tuesday.

GMP Public Relations Officer Dorothy Schnure said that it was Mr. Braithwaite’s refusal to leave the site that caused him to be arrested.  And once an arrest occurred, it was out of GMP’s hands.

“It’s not our case, it’s the state’s,” she said, adding later:  “While we had hoped he wouldn’t be arrested, that’s what played out.”

She declined to comment Tuesday if the company had received Mr. White’s request of GMP to pay for his client’s legal fees and expenses.

In an e-mail later in the day Ms. Schnure stated:

“Frankly, the proposition that David Coriell acted inappropriately and that it gives grounds for a legal claim by Chris Braithwaite is frankly frivolous.”

On Monday Judge Howard VanBenthuysen, who presided over the case, released some of the documents, which had been sealed under an agreement between the defense and prosecution.

The judge noted they had been submitted in support of the defense motion to dismiss with prejudice and were now part of the public record.

He also said he would not rule on the motion to dismiss the case with prejudice until the state had a chance to respond.  If a case is dismissed without prejudice, the state can bring it again.  He set a deadline of December 26 for the prosecution to respond.

Deputy State’s Attorney Sarah Baker said in an interview Tuesday she would file a response opposing the motion because there is still evidence available that would enable the state to win the case.

She said her motion would also explain why the state dismissed the charge, adding that her office did not want to inconvenience a witness and former employee of GMP who has since moved from Vermont.  Ms. Baker also said there were documents in the file that had not been unsealed and that would help the state prove its case, in the event it was brought back.

The documents that came to light this week indicated that the state’s dismissal may have hinged on the failure of a GMP employee at the scene on the day of the arrest to correctly inform police officers of the company’s policy toward arresting Mr. Braithwaite and any other journalists covering the protest.

As GMP officials scrambled to learn what had happened, David Coriell, its representative at the site during the protest, tried to explain to his bosses in two e-mails why the arrest had occurred.

The first e-mail sent on the day of the arrest stated: “Braithwaite and another woman stopped at the edge of the construction site and started taking pictures.  Phil Brooks, the Orleans Co. Chief Deputy, asked Braithwaite and the woman to get back another 50 feet to the Nelson property.  The woman complied.  Braithwaite chose to stay.  Brooks approached Braithwaite and after a short conversation he asked him to leave or come back and stand with those willing to be arrested.  Braithwaite walked back and stood with those being arrested.”

In the second e-mail, dated December 11, Mr. Coriell told his bosses that the no-arrest instructions “didn’t get relayed to all the officers involved.

“That said, I know the Sheriff had no intention of arresting Chris.  Chris actually arrested himself by physically walking back to the middle of the crane path.”

He went on to say that Mr. Braithwaite called the officer an expletive.  The officer charged that the reporter had stepped “over a professional line.”

Ms. Schnure said Tuesday the scene that day at the site was confusing, with cell phones losing signal and people milling around.  She called the arrest Tuesday “a breakdown in communications.”

Concerned that another protest at the mountain was coming, GMP officials huddled and considered what they should do about access and the press, and what instructions to give the police.  An e-mail from Ms. Schnure to GMP managers on December 11 laid out a possible course of action.

“Dave confirm that sheriff will be there early if at all possible.  Ensure sheriff knows media has permission to be there.  Tell Sheriff we really don’t want any reporters arrested.”

Mr. Terry, the consultant, agreed, calling the proposed instructions “a good way to pre-empt another journalism arrest which was never our intent or purpose here.”

While it is still unclear how far the documents went in convincing the state to dismiss the charge, they did provide a picture of GMP managers working to ensure similar arrests of reporters would not occur at future demonstrations.

“We have to minimize the public and political fallout of decisions made on the mountain,” wrote Mr. Dostis in a December 10 e-mail.

“Arresting reporters will do more harm than good.”

Ms. Schnure said repeatedly Tuesday that it was Mr. Braithwaite’s actions that caused his arrest.  And that he was not owed an apology by GMP.

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.

 

Share