A Murky Legal Mess at Standing Rock

A group of protesters is pictured at North Dakota’s Standing Rock Reservation, in September, 2016. Hundreds of anti-pipeline protesters were eventually arrested, and now face unique difficulties.

A group of protesters is pictured at North Dakota’s Standing Rock Reservation, in September, 2016.

In early September, Allisha LaBarge, a member of the Mandan, Hidatsa, and Arikara Nation, travelled from Hibbing, Minnesota, to the Standing Rock Sioux Reservation, in North Dakota, where she began living in a tepee and taking part in protests against the Dakota Access Pipeline, which is meant to transport oil eleven hundred and seventy miles to Illinois. LaBarge, who is thirty-four, joined the protest camps, she said, because she believed that the pipeline, which some Native Americans call “the black snake,” would pollute the Missouri River, violate treaty rights, and harm lands and burial grounds sacred to the Sioux.

In October, LaBarge was arrested during a protest, becoming one of the nearly six hundred people who were taken into custody and charged during the months of prayer ceremonies, marches, and clashes with law enforcement that took place before the Department of the Army announced, in December, that it would not grant an easement that the pipeline needed to cross beneath Lake Oahe, about half a mile from the reservation. The announcement halted the project, at least until the next President is sworn in, and was greeted as a victory by the protesters.

LaBarge pleaded not guilty to trespass and riot charges, and her trial was scheduled to take place January 9th, at the Morton County Courthouse. But it was recently cancelled by North Dakota court officials, along with the trials and final dispositional conferences of about two hundred other pipeline defendants, also scheduled for January. Word of the cancellations went out by way of unsigned notices e-mailed to defense lawyers that stated, “Because of the volume of cases which have been filed in recent months, it is necessary to reschedule trials for the convenience of all parties.” The e-mails said nothing about new court dates.

Officials are rescheduling many of the pipeline-protest cases to insure that the oldest are tried first and to “allow parties appropriate time for discovery and motions,” Donna Wunderlich, the trial-court administrator for the South Central Judicial District of the North Dakota court system, told me recently. The large number of defendants, she said, had presented logistical difficulties for Morton County, which is used to a significantly lighter caseload.

For LaBarge and the others like her, who had spent weeks anticipating trials and preparing themselves for the possibility of guilty verdicts, the abrupt cancellations were jarring. “I feel like I just went through all that stress and anxiety for nothing,” she said. “If I’m going to have to go to jail, I’d like to get it over with.”

The cancellations came as defense lawyers and prosecutors made arguments to the court about what sort of legal representation the protesters are entitled to, and as they were battling over what evidence must be disclosed during pretrial discovery. These disagreements go beyond the typical courtroom back-and-forth: they reflect the polarized political dispute over the pipeline, and the conflict between local authorities and the throngs of protesters from across the country, led by the Sioux, who called themselves “water protectors” and camped for months on the North Dakota plains in an effort to stop it.

The first pipeline trial, involving ten people arrested on August 11th, was scheduled to begin on December 19th, but was adjourned that day when it emerged that the prosecution had failed to provide every defendant with five hundred and sixty-one photographs and about three hours of video that one defense lawyer said contradicted police reports. A judge ordered that the trial be moved back six weeks, and told the prosecution to insure that material connected to the arrests was given to defense lawyers.

“I’m going to give you until the end of the week to call all of the law-enforcement agencies involved to find out if there are any other pictures or videos or any other information related to these arrests themselves and to provide that,” the judge, Cynthia M. Feland, of North Dakota’s South Central District Court, said.*

The next day, the prosecution produced more material related to the August 11th arrests, including twenty-five pages of police reports, notes about the specific times of arrests, and photographs. But defense lawyers said that they received nothing else before the judge’s deadline of December 27th. On December 30th, Ladd R. Erickson, the state’s attorney for McLean County, and one of the prosecutors handling the pipeline cases, told the court that “terabytes of information” existed in connection with some of the hundreds of arrests, including photographs and video footage from government and private aircraft. He asked for an order, which would apply to all pipeline trials, that would allow him to turn over to defense lawyers only evidence he planned to introduce or knew to be exculpatory. Existing North Dakota rules require prosecutors to turn over “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense,” and to allow defendants, upon written request, to inspect and copy documents, photographs, and other items “material to preparing the defense.

 

At the same time, Erickson asked the court to require that defense lawyers get permission from a judge to conduct depositions of prosecution witnesses. Erickson said that he feared lawyers working with the protesters might harbor ulterior motives, and seek sworn statements with an eye to reaping profits from future civil suits. “Essentially these groups just use protesters as plaintiff pawns,” he wrote, referring to legal observers of the sort used by the National Lawyers Guild, a left-leaning legal organization. “To keep order and focus, the State seeks this protective order on depositions to ensure our criminal justice system doesn’t get used for these groups’ self-serving purposes,” he added.

Brandy Toelupe, the president of the Water Protector Legal Collective, a National Lawyers Guild group working with pipeline protesters, said in a written statement that her group was providing “legal advocacy, criminal defense and civil rights litigation,” but added, “Mr. Erickson’s inflammatory public remarks are intended to poison local jury pools to prevent fair trials and to provide cover for his mass overcharging and false charging of arrestees, dearth of evidence, and refusal to comply with local and Constitutional requirements for producing required discovery in these cases.”

Late last month, Chad Nodland, a lawyer representing one of the August 11th defendants, asked the court to dismiss the case against his client, saying that the prosecution had not followed the judge’s order to find and turn over all information related to her arrest and had “dropped the ball in its rule-based, constitutionally rooted, and ethical obligations.” Nodland told me that the orders requested in Erickson’s December 30th filing would violate due process. “That’s the sort of thing I’d expect the prosecution to ask Santa Claus for,” he said. “It’s truly a wish list for oppressive state conduct.” This month, Nodland asked the court to reject Erickson’s suggestions for handling evidence, writing that the prosecution had “thumbed its nose” at the court’s discovery order.

One of the more striking aspects of Erickson’s court filings is the way in which he has portrayed the pipeline protests as if they were performance art meant largely to generate radical propaganda. Meanwhile, he himself has used politically charged language. He has described protesters as “props for videos of staged events,” criticized them for using “victimhood toned videos” to raise bail money, and accused them of taking part in demonstrations or skirmishes with police “to create fake news videos used to bring attention, celebrities, both passionate and gullible people, and finally, money—all to be focused on multiple issues of national discontent.” In a December 30th filing, he warned the court that defense lawyers might try to present “propagandizing” videos as evidence:

Some DAPL protester videos are designed for fundraising, or to get actors weeping into cameras. Pretend journalists like Amy Goodman of Democracy Now or The Young Turks have published manipulated DAPL social media videos with faux narratives in an attempt to be recognized as a news source by those who are duped by fake news.

We are in a facts and evidence format now—a trial. We are not in the fact-less video game world that has separated many people from their money, caused people to ignore blizzard warnings on their way to protest camps to sleep in tents, and influenced President Obama and the New York Times editorial board on the DAPL protests.

Dave Archambault II, the chairman of the Standing Rock Sioux, has consistently said that the protests were about preserving treaty rights and the local land and water. Protesters I have spoken with scoffed at Erickson’s descriptions of them, or laughed, or wondered aloud where he was getting his ideas. Erickson maintains that he has evidence to back up every assertion he has made in his filings. A longtime North Dakota resident, he told me last week that he began helping the prosecutors in Morton County with the pipeline-protest cases as a favor. Morton County normally employs five prosecutors, but it is currently down to three, and the avalanche of cases threatened to bury the county’s state’s attorney’s office. His colorful prose was nothing new, Erickson added—it was part of an approach he developed a few years ago, after becoming bored with standard legal writing. “It’s so dry, but the issues being written about are events and events have a story,” he told me in an e-mail. “If you were to read my briefs on pretty much anything you would see the same style.”

Discussing the material connected to the August 11th arrests, Erickson told me that he had not immediately turned everything over because he hadn’t known how much existed. Photographs and video related to pipeline-protest arrests had been recorded by dozens of police agencies, the North Dakota Game and Fish Department, and individual officers using personal phones, as well as by private security contractors who, Erickson said, were connected to the company building the pipeline, Energy Transfer Partners, and who had sent up professional film crews in planes to monitor protest and arrest sites. (In response to questions about the contractors and the aerial surveillance, an Energy Transfer spokeswoman, Vicky Granado, said, “That is not something I have knowledge of or information on.) The result, Erickson said, was a vast, decentralized trove that was almost impossible for a small group of prosecutors and their assistants to corral and review. His December 30th request for a protective order regarding evidence was an attempt, he said, to create parameters that would help make an overwhelming situation more manageable. “We’re not going to try people before juries that have discovery issues hanging over them,” he said. “We don’t want to redo cases because of appeals.”

Alison Siegler, a professor at the University of Chicago Law School, had a different view of Erickson’s discovery request. Siegler, who runs a legal clinic and has worked as a defense lawyer in federal court, said that discovery rules “reflect the core values of our criminal-justice system” and help codify a prosecutor’s dual role as an advocate arguing for conviction and as a “representative of the people writ large,” who has an obligation to see that justice is served. North Dakota’s discovery rules, she noted, were particularly broad and beneficial to defendants, and Erickson’s filing did not appear to offer a legal basis for turning over less material than he would otherwise be obliged to provide. “I think it reflects a great deal of chutzpah to think that there is any rationale in those papers for the judge to reconsider her order,” Siegler said.

Well before focussing on evidentiary disputes, many pipeline defendants had difficulty finding lawyers to begin with. A significant number have gone unrepresented as the prosecution files motions and proposed orders. Of the two hundred-odd defendants whose January court dates were cancelled, about fifty did not have lawyers as of last weekend, according to court records. Some may not have tried to obtain a lawyer. Others applied for a court-appointed lawyer but were denied because, according to the records, their applications were deemed to be incomplete or because they did not meet income requirements. Some were denied for reasons that are not clear. A few were approved up to two months after they initially applied.

The flood of cases has swamped the local public defender’s office, several local lawyers and the American Civil Liberties Union of North Dakota wrote in December. They asked in a filing that the court loosen rules, to make it easier for lawyers from outside the state to be temporarily admitted to practice in North Dakota and represent protesters for free or at a low cost.

The prosecution has not taken a position on whether the court should make it easier for lawyers from other states to represent protesters. But Erickson has asserted in a filing that “out of state activist lawyers” are directing protesters to “clog jails and court systems.” Because of that, he has written, pipeline defendants do not deserve the free defense provided to those who cannot afford a lawyer. In that filing, dated December 12th, Erickson told the court that he would seek reimbursement to the state from pipeline defendants represented by court-appointed lawyers.

“With the DAPL protest defendants, we are not dealing with ‘normal,’ or cases that our court system and indigent defense programs are designed, staffed and resourced for,” he wrote. “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.”

Only one pipeline trial has taken place so far, on December 20th, and the two co-defendants were convicted of disorderly conduct and of blocking a highway. Both were given suspended sentences of ten days in jail. Erickson, true to his word, asked that they be ordered to reimburse the state for their representation, telling a judge that protesters had been encouraged “to flood our systems, cause economic damage.” Court-appointed lawyers representing the defendants took exception to his request, with one saying, “These are criminal cases, they have a right to an attorney.” But the judge, Bruce A. Romanick, agreed with the prosecution, and told the defendants that they owed five hundred dollars apiece.

“I’ve been involved with many of these cases: everybody’s arrested, everybody has no money, they need a court-appointed attorney, yet somebody bonds them out,” Romanick told the defendants in court. “A lot of folks tell me in court, ‘I quit my job to come do this.’ Well, that means you can get a job and pay these costs back.”

*An earlier version of this sentence misidentified the court where Cynthia M. Feland is a judge.

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