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Stunned Protester Asks for New Trial

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By BOB AUDETTE

BRATTLEBORO -- Whether Jonathan Crowell and Samantha Kilmurray were served with a trespass order the day before they were stunned by police with Tasers really doesn’t matter, said David Sleigh, their attorney in a lawsuit against the town.

That’s because the pair was given permission by the property owner to spend the night on a vacant lot on the corner of Black Mountain and Putney roads on July 23, 2007, he said.

"If they were served notice, it was prior to the owners giving them consent to stay the night," Sleigh told the Reformer on Thursday. "Once given consent, there’s no trespass."

Because the owners had not revoked that consent, he said, police were not acting on behalf of the owners and there was no trespass.

Crowell and Kilmurray were stunned on July 24, 2007, after they refused to leave a vacant lot owned by James Robertson, of Keene, N.H., who also owns Cheshire Oil.

Robertson had torn down an old bowling alley on the property and rumor around town had it that he was in the process of developing a truck stop for the property. Robertson has repeatedly said he has no plans at this time to do that with the land.

A group of protesters, responding to the rumor, gathered on the property on July 23, 2007, waving signs and planting flowers. They asked that the property be turned into a community garden or a park, rather than a truck stop.

After speaking with the owner of the land, police told the group that it was unlawfully trespassing and issued a trespass order.

But in a deposition filed in a separate court case, Town Manager Barbara Sondag testified that Lt. Robert Kirkpatrick informed her that police had been told by Bryant Robertson, James Robertson’s son, that is was OK for the protesters to remain on the property overnight but, if they were there the next morning, "They’d have to do something."

That deposition was produced during discovery in a lawsuit brought against the town by former police chief John Martin. Brattleboro recently reached a $275,000 settlement with Martin for violating his right to due process when the town fired him in Oct. 2007.

Even though Kirkpatrick said the police would keep in contact with the property owners, stated Sleigh in his filing, he told Sondag he and another officer decided "independently" to remove Crowell and Kilmurray from the property.

"The landowners never asked (police) ... to remove (Crowell) from the land after giving him permission to remain," wrote Sleigh.

An attorney for the officers named in the Crowell/Kilmurray lawsuit disagreed with Sleigh’s conclusion.

"They were given a notice that they were trespassing and needed to leave," said Nancy Sheahan, of McNeil, Leedy and Sheahan, the legal representatives of the police officers named in the lawsuit. "Just because they were allowed to stay overnight, that doesn’t invalidate the order."

The plaintiff’s assertion that its occupation of the property was lawful and the arrest unlawful is "completely disingenuous," she wrote, given the fact that "the plaintiffs admitted, by pleading guilty, that their actions were illegal."

Crowell and Kilmurray refused to leave the property and spent the night camping there. On July 24, police discovered they had locked themselves into a concrete-filled barrel, designed to prevent police from evicting them.

The officers used a Taser on Crowell and Kilmurray to get them to remove their arms from the barrel.

In March of 2008, Jonathan Crowell pleaded guilty to trespassing on a vacant lot on the corner of Black Mountain and Putney roads and was fined $200. Kilmurray also pleaded guilty and was placed in a diversion program.

But in a document filed Aug. 18 with Windham District Court, David Sleigh, who is representing Crowell and Kilmurray, said new evidence has come to light which establishes his innocence on the charge he was convicted of.

If Crowell had known of the content of Sondag’s deposition, he would never have pleaded guilty to unlawful trespass, stated Sleigh, who is asking the court to vacate his guilty plea and schedule a new trial.

But in a filing with the U.S. District Court for Vermont, attorneys for the defendants -- Kirkpatrick and officers Michael Gorman, Chuck Aleck and Peter DiMarino -- wrote that Sleigh’s claim that the pair was not trespassing is "simply ludicrous and completely contradicted by the record."

"’If they’re there tomorrow, we’ll need to do something different,’ is not a withdrawal of the notice against trespass," wrote Sheahan. "Despite the recent spin provided by the Plaintiffs, the property owner never withdrew its request that a notice of trespass be given to the Plaintiffs."

Sondag’s deposition makes clear, wrote Sheahan, that her use of the word "independently" only meant that the officers acted without guidance of then-police chief John Martin.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 273.