As law enforcement cleared pipeline protesters from a northern camp established in October, 139 people were arrested for felony conspiracy to endanger by fire or explosion, plus two misdemeanors.
About two weeks after the tense and fiery day, the Morton County state's attorney filed a single criminal complaint outlining the allegations against all 139 of those arrested. Because they were charged together, they are considered co-defendants and co-conspirators in the same case, creating a challenge for the defense commission charged with finding attorneys for many of them.
Ethical concerns usually bar a defense attorney, or even attorneys from a single law office, from representing co-defendants who might later implicate or testify against one another. This suggests 139 different attorneys would be needed to handle the cases.
This new wrinkle adds to growing difficulties facing public defenders in the state, who are scrambling to find ethical ways to represent the ever-increasing number of arrestees who qualify for indigent defense.
In response to this particular case and the general increase, the Commission on Legal Counsel for Indigents decided Friday to temporarily suspend its policy against public defender offices representing co-defendants, according to Jean Delaney, executive director of the commission.
That means a public defender or other contracted attorney could represent more than one person charged in the Oct. 27 incident, as long as the defendants agree to it and the attorney feels it would not adversely affect their representation.
Delaney said this is the first time the commission has suspended this policy, and she anticipates that only some people — defendants and attorneys — will be up for it.
"If an attorney thinks they have a conflict, it's their license, their livelihood," Delaney said. "We won't push anyone into anything they think they shouldn’t be doing."
Delaney said she is also reaching out to attorneys hundreds of miles away to take on the cases and has found about 50 so far, including some from as far away as the oil patch and Grand Forks. It would be helpful if the traveling attorneys could take on multiple defendants in the same case, she noted.
"Attorneys from all across the state have stepped up," she said.
Morton County Sheriff's Department spokesman Rob Keller said it is standard practice for people accused in a conspiracy to be charged together on the same complaint.
However, by creating challenges for the indigent defense commission, it inadvertently plays into a professed goal of the protest movement: to gunk up the court system.
"If Morton County (law enforcement) wants to continue the overt militarization and excessive use of force against water protectors, then we're going to do our very best to make that whole process as complicated and as frustrating for the county itself," said Dallas Goldtooth, an organizer with the Indigenous Environmental Network.
"We're asking our water protectors who do get arrested to stay in there -- not bail out, unless for medical reasons, or not to bail out for their arraignment hearing -- because it puts financial burden on the county itself, a strain on resources and a strain on people's time," he said.
Public defenders have been assigned 201 protest-related cases so far, according to Delaney. That's about 40 percent of the cases filed to date.
Delaney said she has alerted the state Office of Management and Budget to the growing burden on her agency and estimated that she may need an additional $670,000 in a deficiency appropriation. The agency's budget for the biennium, after cuts, was $19.2 million, she said.
She calculated that figure based on an estimate of an additional 500 arrests with public defenders being assigned to half of the cases. Many are asking for jury trials, which take an average of 31 hours per case, as opposed to plea agreements and bench trials, which average 5.5 hours each. Attorneys make $75 an hour to work these cases.
"It’s a guesstimate," she said. "We have absolutely no control over how many people are charged, request an attorney or are found eligible."
The group of 139 people were charged with felony conspiracy to endanger by fire or explosion, plus misdemeanor counts of maintaining a public nuisance and engaging in a riot. The charges originate from a law enforcement raid of a camp established by the protesters atop the pipeline route on Dakota Access property. During the hours-long confrontation Oct. 27, some protesters prayed while other set fires to vehicles and hay bales and threw objects at police. Officers responded with pepper spray and bean-bag bullets.
South Central District Judge Cynthia Feland dismissed the felony conspiracy charge against more than a dozen of the protesters assigned to her on Thursday. The misdemeanors against them still stand, and the fate of the felony charge against more than 100 other protesters is still unclear.