Standing Rock protesters, charged last year, are facing a legal nightmare

The pipeline is back in progress, but justice never came for “Water Protectors.”

Hay is stacked up to feed horses at a protest encampment along the route of the Dakota Access oil pipeline near Cannon Ball. CREDIT: AP Photo/James MacPherson
Hay is stacked up to feed horses at a protest encampment along the route of the Dakota Access oil pipeline near Cannon Ball. CREDIT: AP Photo/James MacPherson

When President Donald Trump restarted construction of the contentious Dakota Access Pipeline (DAPL) with a stroke of his pen last week, he forced members of the Standing Rock Sioux to grapple with the next phase of their resistance. But while protesters figure out how to push back this year, those who were rounded up and charged with criminal offenses last year are still caught up in Morton County’s legal system.

Ten protesters go to trial this week for disorderly conduct, and they are already fighting an uphill battle. The National Jury Project (NJP) recently surveyed eligible jurors in Morton County and Burleigh County, and concluded that residents in both counties — 77 percent and 85 percent of them, respectively — believe protesters are guilty. And in the past month, prosecutor Ladd Erickson filed several motions that undermine protesters’ ability to receive effective legal counsel.

The 10 people standing trial on Tuesday and Wednesday were arrested last August for allegedly crossing police tape and protesting near a highway construction site. Their trial was originally scheduled for December 19, but it was postponed at the last minute by South Central District Judge Cynthia Feland because prosecutors had not provided evidence — including hundreds of photos and three hours of aerial footage — to defense attorneys.

Feland gave the prosecution until the end of that week to hand over the evidence it had, and a few extra days to contact law enforcement agencies regarding additional evidence in their possession, which also needed to be turned over to the defense per state law. The defense would then have until January 9 to review the evidence and file response motions.

At the time, the judge argued that Erickson’s office did not intentionally hide the evidence. But Sandra Freeman, a criminal defense case coordinator for the Water Protector Legal Collective (WPLC), a team that provides jail and legal support to protesters, accused Erickson of undermining defendants’ ability to receive fair representation.

“Instead of turning all of those things over, he filed a request asking that the judge impose a gag order on any discovery proceedings and restrict the ability of defense attorneys to do depositions,” she said.

Erickson’s office did not respond to ThinkProgress’ request for comment.

Indeed, on December 30, Erickson filed a motion to limit the amount of evidence that any protester facing trial could have access to. North Dakota law says prosecutors must give all evidence to the defense, but Erickson asked the court for permission to withhold any evidence the state wasn’t planning to use in the trials of nearly 600 Standing Rock protesters. He also requested that the defense go through a complicated process to procure additional evidence in the State’s possession, and for the defense to obtain special permission before deposing the prosecution’s witnesses.

The motion was filed two weeks after Erickson accused protesters of trying to “inflict economic drains on North Dakota law enforcement and court system resources” and filed a separate motion requiring them to pay for their court-appointed attorneys and costs to law enforcement.

“Each protester attack on our officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and very gullible people, and finally money — all to be focused on issues of national discontent,” wrote Erickson.

According to Freeman, photographs and aerial footage were eventually handed over this month — after the January 9 deadline for the defense to respond. Attorneys have not been able to depose Erickson’s witnesses, she said.

In a court order reviewed by ThinkProgress, Judge Feland ultimately ruled that the prosecution needed to hand over all evidence in its possession, as well as evidence in the possession of other law enforcement agencies. But she gave the prosecution more time to do so by extending the December deadline. She also denied Erickson’s request to limit discovery.

Besides the 10 defendants taking the stand this week, four people have gone to trial for their involvement in Standing Rock protesters. In December, two of them were convicted for disorderly conduct and blocking a highway. Even though they were indigent defendants — unable to pay for their own attorneys and thus provided with court-appointed defense lawyers — they were required to pay $500 dollars to those attorneys and another $500 in restitution to law enforcement. They were also told to pay miscellaneous court fees, in addition to serving a year of probation, and told by Judge Bruce Romanick to “get a job.”

Nearly 600 people are still awaiting trial. Most are charged with misdemeanors, such as disorderly conduct or trespassing, while others face more serious felony charges for conspiracy and reckless endangerment. Angela Biben, a ground coordinator for the WPLC, told ThinkProgress that 176 people still have no legal representation — down from 264 last month.