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