One of the earliest arrestees in the Dakota Access protests had his appeal — the first of the protest cases to come before the North Dakota Supreme Court — argued Thursday.
Kevin Decker, 46, of St. Joseph, Mo., was arrested Aug. 11, 2016, the first day of arrests in the monthslong pipeline protests. He was tried with eight others last winter in the second Dakota Access trial and convicted by a jury of misdemeanor disorderly conduct for pushing an officer.
Decker received a deferred imposition of sentence, including $1,585 in fines and fees and a year of unsupervised probation. His appeal, filed in March, is over insufficient evidence and a structural error during trial proceedings.
Appearing Thursday morning before the state’s highest court, appellant attorney Kiara Kraus-Parr said a clerk of court told deputies and bailiffs not to allow the general public in the courtroom during jury selection so as to prevent members of the public mingling with potential jurors at the high-profile trial.
A bailiff denied access to Bruce Nestor, a defense attorney in many protest-related cases, but not for anyone on trial that day.
Decker's defense counsel requested a mistrial over denial of the right to a public trial, but was denied and the proceedings continued.
Justices fired away with questions for Kraus-Parr, who largely discussed the circumstances of the trial and its alleged closure relating to the Sixth Amendment and accommodations court staff could have made for the prominent trial.
“So it seems that any group of people who want to close down a trial simply show up en masse?” Justice Daniel Crothers asked.
Regarding what’s considered a reasonable accommodation, Chief Justice Gerald VandeWalle asked if livestreaming the trial would have been unreasonable given no facilities exist to do so to satisfy the high interest.
“Another alternative is to try to rent the civic center, but that’s not reasonable, I suppose,” VandeWalle said.
Kraus-Parr said there was no reasonable need to close the courtroom when seats were available.
“So any time the door is locked, that’s a Sixth Amendment violation?” Crothers asked.
Justice Jon Jensen asked about the distinction between closing the courtroom to the public and controlling the flow of people to and from it. Justices Lisa Fair McEvers and Jerod Tufte asked about segregating the jury pool from the public.
“There are some instances where court closure is permissible. This is not one of those instances,” Kraus-Parr said.
Special Morton County prosecutor Ladd Erickson said the protest cases are unique and the related trials bring questions of what to expect in a courtroom, including attendance and potential juror tampering.
“I think there are things you can anticipate and should anticipate and DAPL was pretty high on the horizon,” VandeWalle said, steering Erickson away early on from discussing the motives of pipeline protesters.
Erickson said protesters sought arrest to make influential political statements via the internet.
“That happened during the DAPL cases. That’s all they were about,” Erickson said in conclusion.
After arguments concluded, VandeWalle said the court would take the case under advisement. Decker was not present for his appeal.
"I did not come to be arrested," he said at trial last winter. "I came to stand up for the water."
Two other Dakota Access-related appeals have reached the North Dakota Supreme Court this fall.
Mary Redway and Alexander Simon were the first protest-related defendants sentenced to serve incarceration for their convictions. Surrogate Judge Thomas Merrick convicted and sentenced them in a misdemeanor court trial in October.
Redway served four days in jail while Simon served 12, both at the Burleigh-Morton County Detention Center.
Sam Saylor, of the Freshet legal collective in Mandan, will represent Simon and Redway in their respective appeals, possibly as soon as February in Simon’s case. He said Merrick handed down too harsh of sentences for defendants with clean records.
“I do think the sentences handed out to two people with no prior record who were engaged in essentially nonviolent activity, and whose conduct itself was not described at the hearing, is very problematic,” Saylor said.
Criminal convictions bring collateral consequences, he also said, such as when applying for teaching or nursing licenses in Simon’s situation.
No arresting officer could be found for either Redway or Simon, Saylor added, and no one could attest to their individual conduct on Oct. 22, 2016, when they were among 140 people arrested along the pipeline route in southern Morton County. Saylor also questioned the rehabilitative function of Simon’s jail sentence.
The Water Protector Legal Collective decried the sentences as disparate treatment and bias by Merrick, who countered that Redway and Simon were the only DAPL defendants he has sentenced, and their cases can’t be compared in an independent judiciary.
“I intended the sentences I imposed to be neither too harsh nor too lenient,” Merrick previously said.
In addition to the three appeals, 496 DAPL-related cases have closed, 234 are open and 98 are inactive with warrants as of Thursday, according to trial court administrator Donna Wunderlich.