Historic Injustice Against Water Defenders In ND Courts

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Above: Water canons used to attack Water Protectors from the Sacred Stone Camp as part of the #NoDAPL protests. Credit: Sacred Stone Camp.

Note: The North Dakota justice system continues to show itself to have standards that insure injustice including the behavior of militarized police, corporate mercenaries abusing people, the sheriff and prosecutor over-charging non-violent water protectors, inadequate numbers of defense attorneys and now the court system allowing trials to go forward in violation of basic standards of due process.  The article below summarizes the injustices and asks whether justice can be served in North Dakota — unless there are some dramatic changes, the answer is a resounding “no.”

North Dakota has already been criticized for their enforcement practices of allowing dogs to attack non-violent water protectors, use of tear gas, spraying people with water in freezing weather, firing concussion grenades at close range at people (seriously injuring two women) and abusive militarized police practices.

Private corporate security guards used dogs to attack protectors. //Photo by Tomas Alejo

Private corporate security guards used dogs to attack protectors. //Photo by Tomas Alejo

Now North Dakota is in a self-made legal crisis, created by their overzealous response to the #NoDAPL protests. Since Governor Jack Dalrymple declared  a state of “emergency” on August 19th, arrests have increased dramatically from 28 to more than 500.  In addition to this creating tremendous costs to the legal system, it has created an impossible situation regarding legal representation. The Wisconsin Media Coop reports “to date, 79 North Dakota attorneys have been assigned 265 cases; but the need is not yet met. As of December 2, 2016, court records list fully 264 defendants as being without counsel. Of these 264 defendants, at least 113 applied to be represented by public defenders were denied, in which some of these denials likely to be reversed upon correction and/or completion of paperwork.” The lack of counsel has been made worse by prosecutors over-charging “139-some defendants arrested on October 27, 2016 was charged as a co-conspirator to a felony.” This makes it more likely people will go to trial and each defendant will require separate counsel in order to avoid conflicts of interest.

North Dakota Supreme Court (Front) Chief Justice Gerald W. VandeWalle, Justice Dale V. Sandstrom, Justice Mary Muehlen Maring, (Back) Justice Carol Ronning Kapsner, Justice Daniel J. Crothers

North Dakota Supreme Court (Front) Chief Justice Gerald W. VandeWalle, Justice Dale V. Sandstrom, Justice Mary Muehlen Maring, (Back) Justice Carol Ronning Kapsner, Justice Daniel J. Crothers

A petition filed by nine North Dakota law firms asks the North Dakota Supreme Court to allow out of state lawyers to represent these defendants. The petition says: “These events are of a historic scale. Petitioners know of no other time in which comparable strain has been placed on court system, relative to its size, by such a surge of arrests.”  Comments on the petition were closed on December 30th.

We urge people to share this article widely and urge national legal organizations like that National Lawyer’s Guild, American Civil Liberties Union, the National Association of Criminal Defense Lawyers and the American Bar Association as well as the North Dakota Bar to join in urging the sheriff, prosecutor and courts to take action.  We urge legal associations to work in conjunction with the Water Protector Legal Collective to resolve these issues as well as to seek civil court resolution of these violations of human rights.  Action needed, under the leadership of the Water Protector Legal Collective. includes reducing the charges to stop the over-charging for non-violent Water Protesters, working with defense lawyers to find an acceptable resolution to these cases that does not include extreme fines or jail sentences and allowing out-of-state lawyers to join in these cases.

The United Nations Human Rights Council, the US Department of Justice as well as private human rights groups should investigate this crisis of injustice and take action to ameliorate it.  KZ

Is Justice Possible in North Dakota?

As the trials for the water protectors opposed to the Dakota Access Pipeline (DAPL) proceed in Mandan, the question becomes, is it possible for justice to be served in North Dakota? Consider the facts:

According to Angela Bibens, an attorney from Colorado and a member of the Water Protector Legal Collective (WPLC), the conditions of North Dakota’s legal system at present are making it impossible for fair trials to take place due to several factors.

The Morton County Sheriff’s department made the decision to take a hard-line, militarized position in its response to the nonviolent activities of unarmed water protectors. This includes the use of water cannons, flash bang canisters, rubber bullets, and mace, which resulted in hundreds of water protectors being injured at the front lines.

As of August 19, 2016, there were just 28 DAPL-related arrests. By mid-December, 500 more people have been arrested and charged. This was a crisis of their own making, which has cost the state over $17 million in law enforcement fees.

Water protector being treated by a medic after being tear gassed. Photo: Adam Alexander Johansson.

Water protector being treated by a medic after being tear gassed. Photo: Adam Alexander Johansson.

A joint trial would deprive defendants of their constitutional right to representation and of due process of the law. “So in my mind as a defense attorney,” says Bibens, “this is a miscarriage of justice. Whatever the outcome is, due process is not going to be delivered to these water protectors by the way these trials have been set up.”Because of the large numbers of defendants, the court initially allowed 10 water protectors to be tried together in a joint trial, even though not all of them were arrested in the same place or for the same circumstances.

Water protectors have also be met with new charges that were not included with their original ones. According to water protector Kelli Love, “Eight hours before we showed up to our pretrial last week, we arrived to court and we saw that not only disorderly conduct charges, but a list of other trumped up charges had been added without our knowing, which is already a violation of due process.”

Hours before the December 19 trials of Benjamin Schapiro and Steven Voliva, who were accused of blocking traffic to enable a caravan of water protectors to pass uninterrupted, Voliva’s attorney William Thomason objected to going to trial due to the absence of a key police report. Nobody from the Morton County State Prosecutors office was in attendance to address Thomason’s request for continuance. However, Judge Bruce Romanick denied the request four hours before the trial saying, “We’ve got to keep moving. That’s how our system works.”

Judge Romanick ordered Schapiro to remove his yarmulke as he entered the courtroom. Both defendants were found guilty of obstructing a highway and disorderly conduct. In addition to fines of $1,285, Judge Romanick ordered them to pay all court costs, plus $500 for “restitution to law enforcement” and another $500 for reimbursement for their public defenders telling them, “you can get a job to pay those costs back.”

The lack of the attorneys who are licensed to practice law in the state of North Dakota exacerbates the situation. Even among those attorneys who are licensed, many work for big oil companies. Some court-assigned public defenders have met with the defendants only to tell them their charges are indefensible.

A group of attorneys licensed in North Dakota has petitioned the North Dakota Supreme Court to allow out-of-state attorneys to represent the water protectors. According to the petition, never before in the history of the State has there been such conditions that would sweepingly disallow the constitutional rights of so many.

WPLC called for the resignation of acting Morton County State’s Attorney Ladd Erickson after he filed a motion to hold indigent water protectors liable to repay the state for their court appointed lawyers, while belittling and calling them “props” and their movement a “protracted manufactured spectacle.”

Water protector Vanessa Dundon lost the sight in her right eye after being struck by a tear gas canister. Photo: Adam Alexander Johansson.

Water protector Vanessa Dundon lost the sight in her right eye after being struck by a tear gas canister. Photo: Adam Alexander Johansson.

This effectively discredits all of the reasons the defendants were taking action in the first place, and unjustly prevents them from including the merits of the power of prayer, the violation of treaty rights, and their cultural responsibility to protect the water as a means to defend themselves.Erickson has filed a special “motion in limine” in which the he argues that certain defense strategies need to be excluded: “There’s no relevance to any testimony or evidence regarding historical treaty, tribal sovereignty, the merits of the Dakota Access pipeline, climate change, sacred sites, corporate power, corporate media or any other social or political cause.”

However, in December 2015, Erickson argued just the opposite.

In an editorial about Marsy’s Law,  a proposal to change the constitution to protect and expand the legal rights of victims of crime Erickson wrote, “Never, in any reading of our country’s or state’s history, or in the history our state and federal constitutions, have I found a glimmer of support for the concept that a constitution should be used to shield evidence of innocence from a person accused of a crime, and at the same time grant the control over whether that evidence gets disclosed to the same person who falsely accused someone of a crime to begin with,” Erickson said.

As the prosecution of the water protectors continues, it appears that defendants are being deprived of their constitutional rights. North Dakota law enforcement and the judicial system seem to be stacked against them. Regardless of which side of the pipeline issue one takes, the lack of due process should concern everyone.

  • rgaura

    Keep the overt racism of the Dakota system of political repression in the international news. Shameless and unconstitutional actions require a spotlight!

  • mwildfire

    I wonder if, in the long run, there will be appeals and years from now the state of North Dakota will have to pay a whopping bill. A continuation of the cost of this belligerent and mindless defense of oil companies.

  • Aquifer

    Here’s the thing – this sort of thing is being done all over – just doesn’t get the publicity …

    In NY, for example, protesters are overcharged – now including “Misdemeanor” charges with “Violation” charges for the same action – if one pleas, or is found, guilty of a “Violation” charge, one gets no criminal record and is subject to a fine and/or a couple a weeks in jail. If one pleas, or is found, guilty of a “Misdemeanor” charge, one gets a criminal record and is subject to up to a year in jail.

    As pointed out, these “criminal” charges are indeed overcharges for the actions committed – so why do it? A) as vendettas or B) as threats in “inducing” defendants to plead guilty to lesser charges, of which they may well not be guilty, but are disinclined to defend themselves knowing if they don’t so plead they are faced with the possibility of a much more dire outcome – the State may well know those higher charges are BS, that they are the ones, in fact, advancing what would be “indefensible” charges – but they are counting on folks to accept the plea – and, let’s face it, it usually is in the individuals best interest to do so – why risk going to jail when you don’t have to?

    So this is considered a win-win- win for the state – they are “vindicated” in their actions as they arrested “guilty” people, by their own admission, they looked benevolent in agreeing to reduce the charge – “see, we coulda thrown the book at you, but we didn’t” and they avoided the hassle and expense of a trial – with the risk of a jury exonerating the defendant ..

    The plea bargain, i suppose, is the legal version of the LOTE choice ….

    So the question is – does one push for the state to a) drop the charges altogether b) drop the higher charges with no contingency or c) as part of a plea bargain. The way the system is set up, it seems to me the state would be inclined to “c”, for the reason above – But will that solve the problem of how dissent is being increasingly squashed. Note – that “kindly” offer of a plea is strictly discretionary, and as the water heats up in the pot the frog is sitting in, as the vice is tightened around dissent, as it has been, that “offer” will disappear …

    The State doesn’t want to spend the time and resources on a trial – it’s a PIA and the outcome is not assured – so if it is faced with a lot of them, it has some choices – a) place minimal charges in the first place b) plea bargain down to them, c) don’t charge at all, for Pete’s sake! If the state is concerned about expense, c is obviously the best choice …

    We are being told that we must “take to the streets” in massive numbers if we hope to get anywhere, so i can’t help wondering – whether we need to take to the courts in “massive numbers” – and actually, as ND is demonstrating, those numbers wouldn’t need to be all that massive – overwhelm the system and they would have a choice – stop charging us in the first place or pay through the nose – right now they are getting away with screwing protesters with impunity – this would be a way of, as Savio said throwing our bodies in the gears of the machine ..

    One service i think it would really be good if somebody set up – we need a “clearinghouse” for all those cases where the state is doing this – right now it is all basically under the radar – ND may be the most glaring example, but it is not the only one, and the water is getting hotter and hotter in the frog’s pot …

    ,

  • Aquifer

    It’s not just for the benefit of oil companies – it is to squash dissent, period …

  • Outskirts

    If you lived around here you would know that many natives are embarrased that it’s been turned into a racial issue. If natives don’t see it as racism then why should you?

  • rgaura

    Experience. Also, its structural.

  • Aquifer

    “Structural” – the latest PC buzzword ….

    It seems to me the NAs have a far deeper and more profound understanding of what the issues are here –