Above: Members of We Are Seneca Lake blockading entrance to fracked gas storage facility. Photo from WeAreSenecaLake.com.
Town Justice Raymond Berry’s Granddaughter Sometimes Refuses to Speak to Him Because of Lengthy Sentences to Protesters; He’s Rethinking His Sentences
Odessa, December 7, 2014 — I was perusing tweets today related to the ongoing protests at the gates of the Crestwood energy firm — the protests opposing the storage of methane and proposed storage of propane and butane in abandoned salt caverns near Seneca Lake — when I happened upon some by Faith Meckley.
She’s the youngest of the protesters, a 19-year-old Ithaca College journalism student. Her tweets were environment-oriented for the most part, although she touched base on the New York City chokehold case, too. Naturally enough, she also mentioned the Crestwood protests and the court cases that have arisen from them.
One of her entries dealt with protester Kelsey Erickson, a 23-year-old Cornell University graduate sentenced to 15 days in jail by Reading Town Justice Raymond Berry after Erickson pled guilty Wednesday night to trespass on Crestwood property and declined to pay her fine. “When Kelsey refused her fine,” Meckley wrote, “Judge Berry called her brave and wished her luck.”
True enough. He did, as well as asking Erickson if her parents were aware of her situation (they are). The judge seemed pained by sending her to jail.
Another Meckley tweet relating to the court session read as follows: “Judge Berry told us tonight he doesn’t like to jail people because sometimes his granddaughter stops speaking to him.”
That’s true, too. He did.
In fact, as I sit here recalling that particular evening, the judge said a number of things that were interesting, if only for the fact that other court sessions — at least those I’ve observed — don’t veer as readily into the interpersonal.
The evening was noteworthy too because the direction of court cases there (at least those begging jail sentences) took an abrupt turn. The prevailing philosophy went from “Go Directly to Jail for 15 Days” to “Let’s Talk About It.”
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There have been (counting nine on the morning following Wednesday’s court gathering) 92 arrests on trespass charges at the Crestwood gates alongside Rt. 14 north of Watkins Glen since Oct. 29.
The protesters have, by repeatedly blocking the Crestwood gates and repeatedly getting arrested for it, clogged Judge Berry’s court calendar. Berry, a man with decades on the bench, has little experience with the like of this protest. Nineteen defendants charged with trespass went before him Wednesday night, six drawing jail time, two paying fines and the rest pleading not guilty and thus earning adjournments. Upcoming Wednesdays in that court are pretty well booked into mid-April.
The judge had, until Wednesday night, been consistent in his sentencings. Anyone pleading guilty to trespass had been fined the maximum $250, plus a $125 state surcharge. Anyone declining to pay the fine had received a maximum 15-day jail sentence.
Until Wednesday night. That’s when an aggressive attorney advising the protesters managed to change things.
*****
The attorney’s name is Sujata S. Gibson of Ithaca. She started the evening tentatively, carefully, feeling her way to gain a sense of how far she might be able to push. By the end of the evening — after four people early in the proceedings had declined to pay fines and received 15-day sentences (including the aforementioned Erickson) — she managed to push hard indeed against the judge’s tendency toward the extreme.
For the sake of simplicity, call their differences a philosophical divide. The judge said the maximum was prescribed in each trespass case in which guilt was determined and the payment of fines refused; that there was no provision for leniency in the penal law. Gibson disagreed, saying the power of such leniency exists, in particular through common law. There was give and take between her and Berry, and finally a break in the proceedings for further discussion, and then a sea change.
That break — a 10-minute adjournment — came after Gibson proposed a lesser sentence for protester Judith Leaf, 67, of Ithaca. When court reconvened, Judge Berry did not announce the sentence he was imposing on Leaf, but handed over a sentencing paper to a deputy who escorted the defendant to a waiting area outside the courtroom — a common area for those who would be taken to jail. Word soon spread, though, that the sentence had been for just one day, not 15 — a fact confirmed by the court clerk at the end of the evening. And this striking turn — from hard line to flexibility — continued during a sixth jail case that triggered a remarkable exchange of viewpoints by the judge and protest participants in open court.
*****
The defendant in that sixth case, a 60-something Ithacan named Susan Mead, first gave a personal statement (as many of the defendants did). In it, she said she believed that “we are part of the last few generations that can turn global warming around,” and that the environmental protest at Crestwood’s gates, near the shores of Seneca Lake, was tightly intertwined with that worldwide concern.
When Mead’s statement was completed, Attorney Gibson jumped in again to tell the judge that “in the interest of justice” he should not impose a 15-day jail sentence on the defendant, but one on the order of a single day.
The judge, who lightens the courtroom with humor (which doesn’t always set well with the more serious of those on hand), looked at Gibson and whispered “I wish you hadn’t shown up,” followed by a smile. He then asked her if, since he had “been using the maximum” (without mentioning the one-day sentence he had imposed only minutes before), would it be fair to stop using it now?
Yes, said Gibson, it would be fair because each case should be independent of the others. Besides, she added, “the maximum is too extreme” for the crime committed, trespass being a mere violation. One day in jail, the attorney argued, would be suitable.
“You realize,” the judge asked, “that 15 days turns out to be slightly above a week” when time off for good behavior is figured in. And then he fell silent, leaning back in his chair, stroking his neatly trimmed white beard, thinking. And the courtroom was silent as everyone waited. Finally he spoke again.
“When I took this job over 30 years ago,” he said slowly, “I had to swear an oath to uphold the laws of New York. I think I’ve done that pretty well. I … have a problem with people breaking New York State laws and asking for an easy way out. The laws were put into place to help us and protect us. … If you don’t like the laws we have, change them.”
He paused again, thinking. “I don’t like putting people in jail,” he said, adding that he has a granddaughter who doesn’t like it either, and on occasion “doesn’t speak to me” because his job requires such difficult decisions. “For those of you who have a grandchild,” he said, “to have a granddaughter” react like that “is terrible.”
He thought some more, visibly weighing his options. Finally he ruled:
“I’m going to give you a break,” he told Mead. “Seven days in jail.” And she was led away.
*****
The subject hadn’t run its course yet. The next defendant, a professor of Constitutional Law at Hobart and William Smith Colleges named Paul Passavant, told Berry he was “pleased” with the judge’s change in his approach to sentencing … and then, pleading guilty, he asked that the judge not impose the maximum $250 fine.
“Why?” asked Berry.
“Because I’m an upstanding citizen,” Passavant said, noting that in addition to his college teaching job, he is a member of a town planning board. But Berry imposed the $250 (accompanied by the $125 state surcharge), paid for by a woman on the protest team who presents any defendant who needs the money with the prescribed amount. It is raised, she told the judge, by “a community of hundreds of people around the Seneca Lake watershed.” She also asked, while handing Passavant the funds he needed, why the judge couldn’t fine the defendants “less than $250.”
“Because,” Berry intoned, “I’m a tough old man.”
And there was more to come.
Two cases later, the 17th of the night featured a 56-year-old woman from Brooktondale, Irene P. Weiser, who serves on the town council there. She had spoken earlier in the evening at a protest rally outside, in the nearby parking lot, about the need for more elected officials like her to step up and oppose projects like Crestwood’s.
When the judge reached the part of his instructions to Weiser asking if she wanted to notify someone, free of charge, of what was transpiring — that she had been arrested and was facing a trespass charge — he got more than he expected. Most of the defendants had said “Yes, please contact Congressman Tom Reed, Senators Gillibrand and Schumer, and Governor Cuomo and tell them I’ve been arrested.” “Why would I do that?” the judge sometimes answered, and they would reply that maybe their calls for help in their fight against Crestwood would carry more weight with a judicial letterhead atop their message. “I think you put too much stock in the power of the court,” the judge would answer.
This time, though, Weiser said she had a slightly different person to write to. “I want you to write to your granddaughter,” she told the judge, “and tell her what you can about what is happening in this town, what you know about the lake, and what you know in your heart. You’re not the curmudgeon you’d like us to think you are.
“Think about the historical movement you are part of,” Weiser added, saying it is every bit as significant as the Civil Rights movement. “Tell her about the people speaking for you here tonight and on many nights.”
The judge, smiling, said he would be visiting his granddaughter soon, “and I’ll pass along that information.”
The defendant following Weiser, John Wertis of Trumansburg, said he wanted “to thank you, your honor, for showing leniency, flexibility and a willingness to continue to learn.” Wertis, a teacher, said that that particular aspect is something “I appreciate in my profession.”
“Every day I learn,” responded the judge.
The evening closed on a lighter note, when the judge faced the evening’s final defendant, former Schuyler County legislator Ruth Young, now, at 77, living in Horseheads. Her case, like most that evening, would be adjourned in light of a not-guilty plea.
“I have known Mrs. Young for years,” Berry said, “and have worked with her a couple of times.” Because of that past relationship, he said, he wanted to know if she would prefer to have another judge hear her case.
“No,” said Young, “I’d rather ride a horse I know than one I haven’t been on.”
The courtroom — after all the jail sentences and serious discussion, and after an evening of learning — responded to Young’s line.
Sustained laughter filled the room.