AUGUSTA — Jury deliberations will go into a second day today in the trial of a Occupy Augusta protester who refused police orders to leave the Blaine House grounds.

Diane H. Messer, 59, of Liberty, was one of nine people arrested on criminal trespassing charges at the governor’s residence on Nov. 27, which came after police demanded a permit for the Occupy Augusta tent city at Capitol Park.

The other eight co-defendants, all of whom pleaded not guilty and requested jury trials, and their attorneys will be closely watching the outcome of Messer’s trial. Several of the co-defendants were in the courtroom Thursday.

The prosecutor, Assistant District Attorney James Mitchell Jr., told jurors in his closing argument that people can not go anywhere they want to protest something.

“Nobody tried to stop them from protesting,” Mitchell said. “The problem was where they were located.”

Messer’s trial began Thursday morning in Kennebec County Superior Court. A jury of 10 women and two men deliberated for less than two hours Thursday afternoon and are scheduled to return at 8:30 a.m. today.


Midway through the trial, Justice Nancy Mills rejected a defense bid for an acquittal as well as the prosecutor’s request for a mistrial.

The mistrial request came after a spectator, who earlier identified himself as Alan Lowberg from the town of Washington, attempted to show jurors a hand-printed sign on a piece of white paper that said “Jury nullification” and cited a portion of the Maine Constitution about free speech.

A court officer took the paper from Lowberg and escorted him from the courtroom. The judge then questioned each juror individually about whether they had seen the message. None had, and she allowed the trial to continue.

Messer testified Thursday that she and others from the Occupy Augusta encampment at Capitol Park went to the governor’s mansion Nov. 27 to object to being ordered to apply for a daily daytime-only permit to continue using the park. Without a permit, protesters were told, they would have to leave the park, which is across State Street from the State House.

“We were very disturbed at having our First Amendment rights infringed and wanted to discuss our intentions to stay in the park and see if we could negotiate something,” Messer testified.

She said the group wanted to speak to the governor or a member of his staff. Gov. Paul LePage was in the Blaine House that day, and she said no one answered the door.


Mitchell, the prosecutor, said the parks and sidewalks were open to the protesters.

“The governor’s mansion, the Blaine House, is not a public forum, not a place where people go to redress their grievances in any shape or form,” Mitchell said.

Philip Worden, one of Messer’s defense attorneys, countered that the case involves Messer’s exercise of free speech.

“She was engaged in First Amendment action,” he said. “That gave her the license to go and protest for redress of grievances.”

Worden said Messer stood her ground despite being told she would be arrested.

Messer and three law enforcement officers were the only witnesses who testified at the trial.


“At no time did I hear at any point that we were trespassing,” Messer testified. “When the officer went down the line, telling us we had to leave, he didn’t say, ‘You’re trespassing.’ He looked straight in my eyes and said, ‘Do you want to be arrested?'”

She said she told him no, and that she was there with others to exercise their First Amendment rights.

Ten people, including several who were arrested with Messer, watched closing arguments.

The maximum penalty for criminal trespass, charged as a class E misdemeanor, is 180 days in jail. However, Worden said Thursday that he researched similar cases and those convicted were spared jail time and frequently ordered to perform community service.

Deliberations this morning are expected to begin with a court reporter reading jury testimony to the jury that was given Thursday by Maine State Police Trooper Robert Cejka, who was one of about 15 law enforcement officers who responded to the scene that Sunday afternoon.

Cejka testified that he warned the protesters they could be arrested and they acknowledged it.


“I told them, ‘You’re not going to leave and you know you’re going to be arrested?'” he said. “I got a verbal from each of them, ‘Yes.'”

Messer is a military veteran, and was honorably discharged with the rank of major after 22 years in the U.S. Army. She also was an unsuccessful Democratic candidate for the Maine Senate in 2008.

She was also one of two lead plaintiffs in a federal case that rose from the Augusta Occupy movement in which the protesters challenged the state’s right to require permits to camp in Capitol Park.

Williams filed the lawsuit Nov. 28 to try to get a court order to prevent Capitol Police from evicting Occupy Augusta participants. The lawsuit claimed that requiring protesters to get a permit to continue the vigil in Capitol Park violated their rights to free speech. Williams had argued that occupying a public space was an essential part of the group’s message and was thus communicative, and protected, speech.

Federal District Court Judge Nancy Torreson ruled on Dec. 7 that while the temporary “tent city” in the park was protected by the First Amendment, the state had the right to place reasonable restrictions on the time, place and manner of the protest by requiring the occupiers to get a permit, and ban camping in the park, which is owned and managed by the state.

The protesters left the park shortly afterward. Williams asked the court on March 14 to dismiss that case. There was no opposition to that move.


The others facing a similar charge of criminal trespass are Elizabeth Burke, 48, of Union; Gregory M. Fahy, 44, of Augusta; Jenny Gray, 54, and Patricia L. Messier, 63, both of Wiscasset; Michael Reynolds, 38, of Lewiston, Kimberley Cormier, 47, a Benton selectwoman; James Freeman, 62, of Verona Island, and David J. Page, 44, of Surry.

They are scheduled to appear in Kennebec County Superior Court in the next few weeks.

Betty Adams — 621-5631

[email protected]

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