Warren wrote: "You can intercept our e-mails, but you can't change reality. Good luck talking or buying your way out of this new mess."
Poston got the message. The CP&L public relations representative admits to keeping tabs on NC WARN, the grassroots group that has been waging battle against the utility's recent expansion of high-level nuclear fuel-rod waste storage at its Shearon Harris plant. Warren has been arrested twice for trespassing in the lobby of CP&L's Fayetteville Street Mall headquarters in downtown Raleigh, most recently on Jan. 24, with five others. On Aug. 8, after a two-day jury trial before Wake Superior Court Judge J.B. Allen Jr., the six were found guilty. Also convicted were Mark Marcoplos, Lewis Pitts, Laura Vanderbeck, Nancy Woods and Ruth Zalph, all of whom reside in the Triangle. Each received suspended 10-day jail sentences, $100 fines plus court costs, 25 hours of community service and 18 months of probation. The six have appealed.
Warren and his Durham defense attorney Stewart Fisher claim that Judge Allen was unduly and illegally influenced by an NC WARN e-mail that Poston read and passed on to CP&L attorney Larry Mazer. The e-mail message, which Warren sent out to a list of NC WARN subscribers, detailed part of the defense strategy of the six.
Allen, who was handed the e-mail message by his clerk before court was in session, cited its contents when he denied the defendants' request to conduct a defense based on necessity. The necessity defense, which is rarely permitted in political trials, allows that the actions taken by the defendants were illegal, but necessary to prevent greater harm, in this case an increased risk to public safety as CP&L expands its radioactive waste storage. The NC WARN defendants had planned to call several expert witnesses to make their case for necessity, but Allen denied the request and refused to allow Fisher to make an offer of proof.
Fisher has accused the judge of relying on an "ex parte" (without the parties present) communication as the reason for denying the defendants' use of a necessity defense. Fisher said Allen "improperly received" the NC WARN e-mail. Although the paper trail is not clear, it appears that Mazer passed the e-mail message on to the Wake district attorney who gave it to the clerk who gave it to Allen.
"You're not supposed to have contact with the judge about the case outside of the judicial procedure," said Fisher, "and that's what happened."
Poston admits that he and other CP&L supporters are on NC WARN's e-mail list. However, Warren says Poston does not use his true identity to receive the e-mails.
Poston said the information the judge had was easily accessible to anyone who wanted to find it.
"How that document got in [Allen's] hands I don't know. We categorically deny any improper contact with the judge. We did not know he had it. We didn't intend for him to get it. At the same time, the information in it was public and out there. It was hardly a surprise to anybody that NC WARN intended to use a necessity defense."
"Because of [NC WARN's] ongoing criticism of CP&L and their actions involving these issues," Poston said, "we read their Web site and their press releases and try to stay as informed as possible."
Said Warren: "The battle against this thing isn't over."