NEWPORT â€“ The state is attempting to block testimony, evidence and witnesses that the Lowell protesters want to use as part of their defense at trial. The motion was filed Friday by Deputy Stateâ€™s Attorney Sarah Baker just prior to a status conference.
Judge Robert Gerety Jr. and defense Attorney Kristina Michelsen both said they did not have enough time to review the motion prior to the status conference as they had just received it minutes before.
The defendants are the six protesters who moved onto property leased by Green Mountain Power (GMP), which is in the process of building a wind farm on the mountain. Dec. 5, protesters blocked the crane path and stopped construction workers from continuing on the ridgeline.
The location where protesters stood is under disputed ownership in civil court. Trip Wileman is leasing land to GMP and says he owns it. But Shirley and Don Nelson say a section of the land where GMPâ€™s project is located is actually theirs. Surveyors for each side came to different conclusions.
The defendants are local doctor Robert Holland of Irasburg, Sterling College professor Anne Morse of Craftsbury, David Rodgers of Craftsbury, Ryan Gillard of Plainfield, Suzanna Jones of Walden, and Eric Wallace-Senft of Wolcott. Morse did not attend the status conference.
Wallace-Senft, a carpenter, is representing himself. He indicated he does not have the financial means to hire an attorney.
When Wallace-Senft expressed concern to the judge about the motion, the judge reminded him of his right to remain silent. Judge Gerety also said that whatever Wallace-Senft said, it could be used against him by the state.
â€śI have nothing to hide,â€ť Wallace-Senft stated to the judge, again expressing his concern over the stateâ€™s motion.
Gerety reminded the defendant no determination had been made on the motion.
Wallace-Senft also had questions about the process and time line.
Gerety responded that neither he nor the courts could give him legal advice.
â€śIâ€™m not looking for advice,â€ť Wallace-Senft said, but he wanted to know the date of the trial as it could interfere with his work schedule. The pretrial conference and jury draw are scheduled for June 20 and 21.
Baker wrote in the motion that she believes the defendants will use the land dispute as a defense. Baker wants to stop the defense because she says that at the time GMP had a contract to lease the land and the deed did not list the Nelsons as the owners. At the time of the protest and resulting arrest, a preliminary injunction was in place, giving police the ability to arrest trespassers who interfered with GMPâ€™s work.
Among those whom the defense wants to call are Don Nelson, Judge Martin Maley - the Judge who ordered the preliminary injunction - and surveyor Paul Hannan. Defendants also want to use testimony from the GMP v. Donald and Shirley Nelson case.
â€śA criminal trespass to land case is not the appropriate forum to litigate Nelsonâ€™s claim that they own a portion of the land leased by GMP. Nor is it the appropriate forum for the issue of wind development,â€ť Baker wrote. â€śTo use such evidence would only cause confusion of the issues, and mislead the jury, and waste time.â€ť
Gerety said he is also considering whether the protesters should face trial individually or as a group. Michelsen wants to defend the protesters as a group but said she would speak with her clients to confirm.
GMP is in the midst of constructing 21 industrial size turbines. The project is contentious between supporters and strong opponents. Some opponents set up camp near the project, take pictures of what is happening, and hold open house events to let people know why they are there and oppose the project.
Barton Chronicle Publisher Chris Braithwaite was covering the protest and subsequent arrest and was also arrested. Braithwaite is represented by Attorney Phil White, who is arguing a different defense.