Above photo: From We Are Seneca Lake.
Local Grape Grower and We Are Seneca Lake protester Phil Davis found guilty of trespass at Town of Reading Court.
We Are Seneca Lake to Seek Appeal
Reading, NY – Phil Davis received a guilty verdict on Friday, Nov. 18, and was sentenced to ten hours of community service and a $125 NYS surcharge. Davis was arrested during a peaceful protest outside the gates of the Crestwood gas storage facility in Reading with nine other individuals on December 21, 2014. They were part of the We Are Seneca Lake movement, which has been utilizing non-violent direct action since October 2014 to block the expansion of gas storage in the crumbling salt mines on the western shore of Seneca Lake.
Defense counsel Sujata Gibson, an attorney with Schlather, Stumbar, Parks and Salk, stated after the trial that she planned to make an expedited appeal of Davis’ case, and that she believes the verdict was fundamentally wrong.
“We are getting inconsistent rulings on these cases and the legal standards being applied appear to be fundamentally flawed. Since we started trying cases in the fall, the majority have resulted in acquittals. But then, in the last few weeks, we’ve been seeing guilty verdicts more often. There is no apparent difference between the evidence presented in the trespass trials that lead to guilt versus the ones that lead to acquittals. To handle this inconsistency, we elected in this case to test some of the legal issues at play. Rather than have a full trial with evidence and testimony, the Assistant District Attorney and I sat down and hashed out a few pages of “stipulated” facts to present to the Judge. Based on these facts, the Judge delivered a guilty verdict. He declined to give any guidance as to how he came to this decision.”
Attorney Gibson continued: “The primary reason we did a trial on stipulated facts, rather than a regular trial, is we believe there are fundamental errors in how the law on trespass is being applied here, and we hope the appellate process will be much faster given this stipulated record so that legal questions in dispute can be applied to some of the hundreds of other related cases. This way, the appellate court has a clear record of the facts, and we don’t have to buy a $1,900 transcript or wait several months for a record to be transcribed. We can just go straight to the appellate court and say, “Here are the facts, here are our legal questions; please give us some guidance.” Rather than continue weekly trials as scheduled, we’d like to pause the trials while we await this ruling on appeal, so that more innocent people are not found guilty, and tens of thousands of taxpayer dollars are not wasted on trials that will likely need to be reversed.”
The keys facts in question were whether Davis was on private property, and whether he was aware of it or not. Both elements need to be established beyond a reasonable doubt to find guilt. The stipulated record provided that it was unclear where Davis was standing at the time of arrest. The line between private property and public property was not marked at the time, other than two faint white hash mark lines on either side of the drive, of which neither law enforcement nor Davis were aware. These lines were painted by Crestwood, and had a faded “State ROW” written on them.
Davis was shown in a photograph to be on the state side of the line in what was stipulated to be his understanding of where he was at the time of arrest, though there was another photograph that the DA found on the internet which showed him farther back, but without any foundation as to whether this was after or before arrest. The DA included in the stipulation, over objection of defense counsel, hearsay reports that, at least eight months after the arrest, a new property measurement was taken that might mean that, in either photograph, Davis was standing in peaceful protest a few feet from what is now understood to be the actual property line. Both sides stipulate that this new line was not present at the time of arrest or known by anyone, and that since it was marked, there have been no trespass arrests in any subsequent protests.
The stipulation further provided that a few posted signs erected by Crestwood were intentionally placed far away from the property line near the road on public property at the direction of the Schuyler County Sheriff’s Department. Crestwood’s representative stipulates he did not place the signs to warn people that that was the line, but rather to “indicate that private property started further back.”
“Further back, what you see is a gate,” Gibson explained. “No one went beyond that gate. The gate is littered with posted signs, but other than that, there’s really no marking… That fact alone should get these cases thrown out.” Gibson expressed concern over the court’s lack of attention to the element of knowledge. “It was stipulated that not only did Davis not know he was on private property (if he was), but that nobody – not the Sheriff, not Crestwood and not the DA – knew. So not only do we not have knowledge beyond a reasonable doubt, we actually have a stipulation that this element simply did not exist in this case.”
Another point that Gibson brought up was warning. “Under the law, Davis needed to have been given personal warning letting him know that he was trespassing… He wasn’t given that warning. This was a stipulated fact. It’s another issue we’re going to raise on appeal.”
After the trial, Davis said, “To me it seems immoral and a little bit arbitrary, given the fact that nobody…seemed to know at the time of the alleged trespass where the line was. But, I guess that’s just trying to apply logic to something that I find totally illogical.” Davis sees the events of his trial not as a balanced search for justice, but as the result of possible political motivation in the legal system. Incidents that previously occurred at the Town of Reading Court, such as when the court broke with existing law and barred the public, the press and even the defense attorney from entering the building on the night of Davis’ initial arraignment in 2014, are viewed by Davis as further evidence of a local court that has shown bias against the
defendants. He sees the current actions of the court as a slight improvement over what came before: “It was good to have a little experience of due process, as opposed to the beginning, with all these events up here in Reading and the obvious kangaroo court that they had going. At least now there’s a little more due process, which is good.”
Since the beginning of the We Are Seneca Lake campaign over 400 people have been arrested at the gates of the Crestwood facility. The gas storage expansion project, which was approved by the Federal Energy Regulatory Commission (FERC) in 2014, depends on the appointment of a NYS geologist to undersign the federal permit in order for construction to begin. For over two years, We Are Seneca Lake has been urging FERC to rescind the permit, and Governor Cuomo to deny approval at the state level.
Davis feels strongly that standing up against Crestwood’s plans to expand gas storage on the lake is the right thing to do. “This is one of those deals where you can’t compromise,” he said, “particularly as it pertains to your environment, and drinking water, and just the life that’s in that lake. You can’t compromise on that. And so, I’m not compromising.” He hopes that the guilty verdict won’t discourage others from taking action to protect their community either, and stated, “This cause, this fight, it can’t stop just because a few of us are getting some fines and a few of us are getting sentenced to community service… The reason I’m here is because of community service, and I am happy to do more.”
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