Prosecutor Asks Judge to Keep Environmental, Treaty Issues Out of First Protester Trial

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Staff | Bismarck Tribune – Dec 15, 2016

The first pipeline protesters will go on trial Monday and the prosecutor is asking that they keep issues of tribal sovereignty, the concerns about the Dakota Access Pipeline and “any other social or political cause” out of the courtroom.

“This trial is not being held so there can be a forum to extend the months of conflict and context over these extraneous issues,” Ladd Erickson, who is prosecuting the case for Morton County, wrote in a motion filed Dec. 12.

But a local criminal defense attorney involved in the protest cases said the 10 people set to be tried on disorderly conduct charges have “a right to explain why they were there,” which the prosecutor’s request seems to preclude. The protesters fear pipeline construction disturbed sacred sites and that a leak could contaminate the Missouri River.

“They just didn’t parachute in from Mars,” Tom Dickson said. “They certainly have a right to say why they were there, why they were doing what they were doing.”

South Central District Judge Cynthia Feland, who is overseeing the trial, has yet to rule on the motion.

The trial pertains to 10 pipeline protesters arrested on Aug. 11, one of the first days of the protests, when protesters gathered near a construction site on Highway 1806 in Morton County. They are scheduled for a joint misdemeanor trial at the Morton County Courthouse on Monday morning.

The defendants are charged with with disorderly conduct, a B misdemeanor carrying a maximum penalty of 30 days in jail and $1,500 in fines. An affidavit filed with the complaint accuses the defendants of pushing through law enforcement lines or police tape to access the work site. Erickson suggests in court documents that, if convicted, the state would seek $1,000 from each defendant to repay law enforcement costs.

Dickson contends the charges are inherently political.

“People have gotten arrested while espousing their political viewpoint which at some point the state contends violates the law,” Dickson said.

But the judge has suggested in her responses to court motions that she believes the alleged conduct, if proven, is criminal.

In an order responding to a defendant’s requests to dismiss her case because she was exercising her First Amendment rights, Feland wrote that the defendant’s alleged actions, crossing onto an access road to the work site against police orders, went beyond free speech.

“The court recognizes that the First Amendment gives the public a right to voice their concerns, to protest lawfully, to criticize the police and even to yell profanities at police officers, Feland wrote in her order.

“Under the facts alleged, rather than obeying the orders of law enforcement and conducting the protest in a peaceful and lawful manner, the defendant directly disobeyed law enforcement and deliberately crossed into undesignated areas, creating a hazardous and alarming condition for both law enforcement officers and Dakota Access construction workers,” she wrote.

Due to this being the first pipeline trial, 65 potential jurors — the number usually called for a felony trial — have been called to fill the six-person misdemeanor jury, according to Ross Munns, assistant court administrator for the region.

Erickson, the prosecutor, noted there could be issues picking a jury due to the public nature of the case and protests.

“The whole state is invested in this,” Erickson said. “It’s not a typical case where the jurors haven’t heard anything on it.”

The trial is scheduled for one day, with extra tables and chairs to accommodate the 20 lawyers and defendants, but Dickson suggested it could take more than a day just to pick the jury.

“It’s more than just been in the news,” Dickson said. “This has been high-profile and high-involvement by the community.”

In advance of the trial, Feland has ordered court-appointed attorneys to track their hours spent preparing for the cases. This is in response to a motion by Erickson, who indicated in court documents he will seek hearings on repayment of public defender fees after trial. He contends protesters are seeking to cost the state and county money through their arrests and criminal cases.

“Our systems are set up so criminal defendants have their constitutional rights enforced. To the contrary, our systems are not set up to be foddered by economic weaponry when people from around the world come to intentionally commit crimes for political purposes and have North Dakota taxpayers pick up the tab,” Erickson wrote in a motion filed Dec. 12.

At least four of the defendants have court-appointed counsel.

Public defenders have been assigned 287 cases and are requesting an additional $670,000 to pay for the additional lawyers, according to Jean Delaney, executive director of the indigent defense commission. Delaney said it’s not uncommon for the state to try and recoup fees, but it’s typically dependent on the person’s funds, not their intentions.

“Whether there is recoupment ordered is based on whether there is a possibility of the client being able to pay it,” Delaney said.

Feland is a former prosecutor, who recently dismissed felony charges against more than 100 protesters arrested during a raid of the northern “front line” camp.

The defendants include Sara Jumping Eagle, a doctor and wife of former congressional candidate Chase Iron Eyes. For two of the 10 defendants, Monday will not be their last date in court, as they have additional open cases relating to pipeline arrests.

The defendants are from 9 different states, including North Dakota, South Dakota, Oregon and Hawaii. They range in age from 23 to 57 years old.

Monday’s trial is just the first pipeline protest trial of the week. Sixteen more protesters are scheduled for trials on Tuesday, Wednesday and Friday, according to the court clerk’s office.

A total of 571 people have been arrested in connection with the pipeline protests, according to the Morton County Sheriff’s Department.

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