A local attorney has accused a Morton County prosecutor of using "financial warfare" to coerce guilty pleas out of protesters.
"Morton County is looking to ensure that folks are on notice that, in its county, the First Amendment will not be upheld, and that, if anyone does come to peacefully protest and the judges and juries uphold that right, there will still be punishments to be had," Bismarck attorney Erica Shively wrote in a brief Thursday.
Shively was taking the unusual step of opposing Assistant Morton County State's Attorney Brian Grosinger's motion to dismiss the case against her client, Mary Redway. She wanted to go to trial on Friday.
Twenty-one hours before Redway's trial, Grosinger moved to dismiss. Judge Allan Schmalenberger granted it. Redway's case closely resembles dozens of other cases from Oct. 22 that have been dismissed in recent weeks, often shortly before trial. Grosinger then re-charges the protester with a more serious offense and issues an arrest warrant.
Redway, who traveled to Bismarck this week from Rhode Island to stand trial, now faces three new charges, which were filed with an arrest warrant on May 24. Shively said Grosinger never alerted her to the new case. Rather, he issued an arrest warrant, which she found by searching the court records.
"This is a waste of taxpayer money, a waste of time, harassment and again, financial warfare aimed at securing guilty pleas," Shively wrote in the brief.
Grosinger did not respond to a phone and email request for comment on Thursday or Friday. In court documents, his reason for dismissing the case was "the concern the state cannot meet the elements of the offense charged."
In response to similar allegations from another court case, he cited the 700-plus pending cases and said, "Not all information available during the trial preparation was available at the time of the charge. Due to this reality, the necessity of changing course arises."
On Oct. 22, several people locked themselves to Dakota Access Pipeline equipment in Morton County. In solidarity, a group of more than 200 people marched towards the site across private property. Police allege the protesters ripped survey stakes from the ground and yelled at law enforcement when they were told to leave. A total of 126 protesters were arrested and charged with criminal trespass and engaging in a riot, when police surrounded the group.
Police have characterized the incident as a riot, but Redway said people thought of it more as a prayer walk or even a picnic, and some brought their dogs along. She said she did not see signs marking the land as private.
"I'm a fast walker. I would've seen them," said the 64-year-old retired environmental planner. She said police used mace and batons, causing panic within the group.
Many people from out-of-state have taken guilty pleas. The state has offered deals, which include no jail time and forfeiture of bond. Recently, they have also offered pretrial diversions, according to Shively.
Redway said she wants to persist in her case, including going to trial on the new charges of disorderly conduct, physical obstruction of a government function and disobedience of safety orders during a riot.
She's retired and has the resources to return to North Dakota, which she realizes many other activists do not.
"If I can fight it, I will," she said.
Protesters convicted at trial
Also on Thursday, Grosinger took two cases from Oct. 22 to trial — the first time he has proceeded to trial instead of dismissing from that date.
The six-person jury found Dakota Luke, 27, guilty of criminal trespass and engaging in a riot and co-defendant Emmalyne Garrett, 33, was just found guilty of criminal trespass. Jury members made up their minds in less than 20 minutes, according to Harris, who is Luke's attorney.
Harris said the state argued that walking together in the group constituted participating in a riot. She tried to argue that the demonstration was not a riot, because there was not damage to property or people.
The officers testified the land was posted, according to Harris, who argued that testimony should have been left out, because there are no photos of postings.
They were both given one-year deferred sentences, fines and ordered to repay $300 for their appointed attorneys. Both are re-charged with three new misdemeanor crimes from the same date.
"As a criminal defense attorney, anytime I've had a guilty verdict with a jury, I've always felt confident that the jury made the right decision," Harris said. "This is the only case that I've had where I felt the jury nullified and refused to apply the law."