A Dakota Access Pipeline protester who was jailed for refusing to provide testimony to a grand jury that's apparently investigating a violent clash between protesters and law officers more than four years ago has been released after nearly three weeks behind bars.
However, attorneys for Steve Martinez say he faces a new subpoena that orders him to testify before the grand jury on March 3.
“This ruling terminates, but does not remedy, three weeks of categorically unlawful incarceration endured by Mr. Martinez. That the government’s response was to re-subpoena him speaks to the perversity of this process," his attorney, Moira Meltzer-Cohen, said in a statement Tuesday.
The government's side of the dispute is unclear. Grand jury proceedings -- which are used to determine whether there’s enough evidence for authorities to file criminal charges in a case -- are secret, and the government does not confirm or deny them, much less speak publicly about them. Assistant U.S. Attorney Gary Delorme, who is linked to the case through several court documents, has not responded to a Tribune request for comment.
Martinez, 46, is originally from Pueblo, Colorado, and now lives in Bismarck. His attorneys last week had filed objections to him being jailed without bond as a federal prisoner on Feb. 3, maintaining that a contempt of court finding by U.S. Magistrate Judge Alice Senechal was unlawful. Martinez's attorneys say U.S. District Judge Dan Traynor on Monday agreed with their contention, ordered Martinez released, and said all further litigation related to the grand jury proceedings should take place before a district court judge rather than a magistrate.
The order is not publicly available because of the secret nature of grand juries. However, the Burleigh Morton Detention Center jail roster no longer listed Martinez as an inmate on Tuesday.
The government served Martinez with a new subpoena prior to his release, according to his attorneys. It's the third he's been issued since the November 2016 clash.
The confrontation in south central North Dakota became the emblematic skirmish of the six-month protest in 2016 and 2017 that resulted in more than 750 arrests. Protesters tried to push past a blocked highway bridge near their main encampment but were turned back by authorities using tear gas, rubber bullets and water sprays. Police say protesters threw objects including rocks, asphalt and water bottles at officers.
Twenty-year-old New York City resident Sophia Wilansky suffered a left arm injury in an explosion. In November 2018 she filed a federal civil rights lawsuit seeking millions of dollars from law officers and Morton County, defendants who have denied wrongdoing. Authorities maintain the blast was caused by a propane canister that protesters had rigged to explode. Protesters allege the blast that injured Wilansky was caused by a concussion grenade thrown by officers.
The government believes Martinez is the person who drove Wilansky to Prairie Knights Casino and called 911 on her behalf. Martinez’s attorneys have not confirmed that. He was subpoenaed to appear before the grand jury in December 2016 but refused to cooperate, and about 40 of his supporters rallied outside the federal courthouse in Bismarck in January 2017. A federal judge refused to quash the subpoena, but prosecutors later withdrew it without giving a reason.
They subpoenaed Martinez again last November, according to his attorneys, who believe the government is trying to shift the blame for Wilansky’s injuries from law enforcement to protesters. They note that the subpoena came just days after Traynor dismissed defamation claims Wilansky made in her civil lawsuit but allowed some excessive force and assault claims to continue. He also ruled that her attorneys could subpoena federal officials for shrapnel and clothing taken from her while she was hospitalized in Minneapolis. Wilansky in 2018 had unsuccessfully sued the federal government for the items to bolster her civil suit.
“This grand jury certainly appears to have been convened for the primary purpose of manufacturing an ‘ongoing criminal investigation’ such as would justify the government’s refusal to hand over definitive evidence in a related civil proceeding,” Meltzer-Cohen said.
The scope of the grand jury investigation isn't clear. But court documents unsealed in October 2017 indicated that the government had searched Wilansky’s Facebook account for any evidence that might implicate her of federal crimes dealing with homemade explosives.
The pipeline has been moving Bakken oil east since June 2017. American Indian tribes and environmental advocates fear an oil leak would contaminate the Missouri River. Developer Energy Transfer and federal officials who permitted the pipeline maintain that it's safe.
Reach Blake Nicholson at 701-250-8266 or email@example.com.