A South Dakota man accused of being part of a 2016 Dakota Access Pipeline riot based on DNA evidence found on a cigarette butt has been granted a waiver that allows him to be absent from a Tuesday preliminary appearance.
Attorney Bruce Nestor of Minneapolis filed for the waiver on behalf of Lawrence Malcolm Jr., 23, of Sisseton, S.D., saying his client’s appearance at the hearing would cause a financial hardship. South Central District Judge Bruce Romanick signed the order on Thursday.
Prosecutors did not file a response objecting to the request. Assistant Morton County State's Attorney Chase Lingle did not immediately respond to a call Friday seeking comment.
Malcolm is charged with a felony for conspiring to commit criminal mischief and a misdemeanor for engaging in a riot. Investigators allege his DNA on a cigarette butt links him to the scene of a 2016 DAPL construction site where rioters caused hundreds of thousands of dollars in damage to equipment. His DNA was on file from a previous arrest.
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Nestor argued in a September motion for dismissal that it’s impossible to determine where the cigarette butt originated or how long it might have been there.
Malcolm is observed at the riot scene in photos and video, and a preliminary hearing is “the more appropriate time for addressing probable cause,” prosecutors say.
Malcolm missed a Nov. 21 preliminary hearing because he had car problems and couldn’t make other transportation arrangements. South Central District Judge Gail Hagerty denied Nestor’s request to proceed with the hearing anyway.
Two other DAPL-related cases against Malcolm were settled in November. He pleaded guilty to a misdemeanor charge of physical obstruction of a government function in a 2017 case. Nine misdemeanor charges and a felony simple assault charge were dismissed. Two felony charges and one misdemeanor were dismissed in a 2016 case in which Malcolm pleaded guilty to misdemeanor trespassing. The plea agreement covering both cases stipulated 30 days of jail time with enough credit for time served to cover the sentence.
Nestor said he plans to hear the state's case and respond to it at the Tuesday hearing. He declined further comment.
Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com