Published December 17, 2016
MANDAN, NORTH DAKOTA — On Thursday, December 15, 2016, the North Dakota Supreme Court issued an order calling for public comments on a petition filed by the Water Protector Legal Collective (WPLC), an initiative of the National Lawyers Guild (NLG). The deadline for comments is set for 4 PM on Friday, December 30.
The WPLC also called for the resignation of Acting Morton County State’s Attorney Ladd Erickson after he filed a motion to hold indigent Water Protectors liable to repay the state for their court appointed lawyers, while belittling and calling the Water Protectors “props” and their movement a “protracted manufactured spectacular.”
On December 14, citing the existing emergency in the South-Central Judicial District, WPLC requested a temporary amendment to state rules that would ease requirements for temporary admission to practice law in the state. Under current rules, out-of-state lawyers must either apply on a case-by-case basis or make a full application from a state whose law license North Dakota recognizes.
“Denying Water Protectors their constitutional rights to counsel is a far more serious barrier to justice than concrete slabs across a highway,” said William Tilton, WPLC lawyer. “We filed to call on the Supreme Court to recognize this judicial emergency and open the courts to qualified criminal lawyers who are standing by to help.”
In August, Gov. Jack Dalrymple declared a state of emergency following the arrests of just 28 Water Protectors. Since then, there have been more than 500 additional arrests. To date, 75 North Dakota lawyers have been assigned 165 cases, but an additional 264 Water Protectors remain without lawyers. At least 113 were denied public defenders.
The petition also states that despite the overwhelming surge in arrests, no emergency funding has been set aside for the public defense system, which struggled to meet demand prior to the protests. Further, there are too few criminal defense lawyers to even represent those who do not qualify for public defenders, due to high caseloads and conflicts of interest.
The out-of-state lawyers are held back by problems under the case-by-case rules. Each must connect with an in-state lawyer, who must also attend all hearings. They have had significant problems finding willing in-state lawyers. The full application process for out-of-state lawyers is also a large burden, requiring weeks of information gathering and expenses of nearly $1,000 each.
In an ironic twist, local media have reported that the shortage of public defenders has also been worsened by the large increase in lucrative oil company legal work, driving many lawyers away from public criminal defense.
In his motion to the trial court judge, Erickson seeks an order on the state agency responsible for indigent defense to account for every hour and dime expended by court-appointed attorneys to assure large judgments against Water Protector defendants. To justify this unprecedented move, Erickson charged: “Each protester attack on our police officers, each riot, and each incidence of private property destruction has been done to create fake news videos used to bring attention, celebrities, both passionate and gullible people, and finally money – all to be focused on multiple issues of national discontent… Most protest criminal defendants are simply props for videos of staged events.”
“State’s Attorney Erickson set out to use the most slanderous words and harmful rhetoric he could muster to defame the Water Protector defendants, their lawyers and supporters, and undermine the legitimacy of the Standing Rock encampment and concern over the DAPL, said Jeff Haas, WPLC lawyer. “Certainly, another objective of Erikson’s motion was to bias prospective Morton County jurors who will be hearing the first Standing Rock jury trial set for Monday, December 19.
For the reasons above, WPLC calls on State’s Attorney Erickson to step down as prosecutor. WPLC calls on the courts to decide whether his prosecutorial conduct has tainted the jury pool and prevented a fair trial to the point that the Water Protectors’ cases must be dismissed.
WPLC urges people to comment, in writing, on the rule amendments that would make it easier for out-of-state lawyers to represent Water Protectors, by 4 PM, Friday, December 30, 2016. Comments may be e-mailed to Penny Miller, Clerk of the Supreme Court, at [email protected], or addressed to 600 E. Boulevard Ave., Bismarck, ND 58505-0530.
The Water Protector Legal Collective is the National Lawyers Guild legal support team for those engaged in resistance to the Dakota Access Pipeline. It maintains a 24/7 presence on-site at the Oceti Sakowin camp near Cannon Ball, North Dakota.