A judge has dismissed the remaining charge against a South Dakota man who prosecutors alleged was part of a 2016 riot at a Dakota Access Pipeline construction site based in part on DNA evidence found on a cigarette butt.
The misdemeanor charge of engaging in a riot filed against Lawrence Malcolm Jr., of Sisseton, S.D., was dropped this week at the request of both the prosecuting attorney and the defense. South Central District Judge Bruce Romanick signed the order Tuesday.
Defense attorney Bruce Nestor on Jan. 16 filed a motion to dismiss, saying the state waited too long to file the charge. The statute of limitations for the offense is two years. The criminal complaint was filed almost three years after the alleged offense, Nestor said.
Assistant Morton County State’s Attorney Chase Lingle on Tuesday filed a motion to dismiss, saying “the Court has made statements that concern the State about its ability to prove” the charge at trial.
Romanick on Jan. 6 dismissed a felony criminal mischief conspiracy charge against Malcolm for lack of probable cause, saying the state showed “that the Defendant was there and nothing more,” and that there was no evidence of conspiracy.
Lingle did not respond to requests seeking comment on the case.
Nestor said he believes prosecutors charged Malcolm because they wanted to punish him for being part of the protests, not because they had evidence of wrongdoing.
"There simply was no basis to charge Mr. Malcolm with a crime in this matter,” Nestor said.
Malcolm was charged in September after investigators alleged DNA evidence found on a cigarette butt showed he was at the scene of the 2016 riot, where they said hundreds of thousands of dollars in damage was done. His DNA was on file from a previous arrest. Nestor countered that it was impossible to determine where the cigarette butt originated or how long it might have been there.
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.
Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com