BISMARCK, N.D. | In the wake of the law enforcement raid of the northern "frontline" camp in October, 139 pipeline protesters were arrested and charged with a felony and two misdemeanors.
The group was charged on the same complaint, which makes all 139 people co-defendants and co-conspirators in the same case, a difficult and perplexing situation for the defense commission charged with finding attorneys for them.
Ethical concerns usually bar a defense attorney, and even a whole law office, from representing co-defendants, who might later implicate one another.
This new wrinkle adds to growing challenges facing public defenders in the state, who are scrambling to find ethical ways to represent the ever-increasing number of protesters who are arrested and qualify for indigent defense.
In response to this particular case and the growing number of cases, the Commission on Indigent Defense decided Friday to temporarily suspend its usual policy against public defender's offices representing co-defendants in a case, according to Jean Delaney, executive director for the commission.
That means a public defender or other contracted attorney could represent more than one person charged in the Oct. 27 incident, as long as the defendants agree and the attorney feels it would not adversely affect their representation.
Delaney said it is the first time the commission has suspended this policy, and she anticipates that only some people — defendants and attorneys — will be up for it.
"If an attorney thinks they have a conflict, it's their license, their livelihood," Delaney said. "We wont push anyone into anything they think they shouldn’t be doing."
Delaney said she is also reaching out to attorneys hundreds of miles away to take on the cases and has about 50 so far, including people from as far as the oil patch and Grand Forks. It would be helpful if the traveling attorneys could take on multiple defendants in the same case, she noted.
"Attorneys from all across the state have stepped up," she said.
Public defenders have been assigned 201 protest-related cases so far, according to Delaney. That's about 40 percent of all the cases filed.
Delaney said she has alerted the Office of Management and Budget to the growing burden on her agency and estimated that she may need an additional $670,000 in a deficiency appropriation. The agency's budget for the biennium, after cuts, was $19.2 million, she said.
She calculated that figure based on an estimate of another 500 arrests with public defenders being assigned to half of the cases. Many are asking for jury trials, which take an average of 31 hours per case, as opposed to plea agreements and bench trials, which average 5.5 hours per case. Attorneys make $75 an hour to work these cases.
"It’s a guesstimate," she said. "We have absolutely no control over how many people are charged, request an attorney or are found eligible."
Justin Vinje, a Bismarck defense attorney and member of the commission, said some attorneys may not be comfortable representing multiple people relating to the Oct. 27 incident, because in a conspiracy case, people are being accused of working together to commit a crime. He said screening at the outset will help determine appropriate applications for the new policy.
"We want to be able to still guarantee that people charged with crimes in North Dakota receive speedy and effective legal counsel," Vinje said.
Morton County Sheriff's Department spokesman Rob Keller said it is standard practice for people accused in a conspiracy to be charged together on the same complaint.
However, by creating challenges for the indigent defense commission, it inadvertently plays into a professed goal of the protest movement — to gunk up the court system.
"If the Morton County police department wants to continue the overt militarization and excessive use of force against water protectors, then we're going to do our very best to make that whole process as complicated and as frustrating for the county itself," said Dallas Goldtooth, an organizer with the Indigenous Environmental Network.
"We're asking our water protectors who do get arrested to stay in there, not bail out, unless for medical reasons, or not to bail out for their arraignment hearing, because it puts financial burden on the county itself, a strain on resources and a strain on people's time," he said.
The 139 people were charged with felony conspiracy to endanger by fire or explosion and misdemeanor counts of maintaining a public nuisance and engaging in a riot. The charges originate from a law enforcement raid of a northern camp established by the protesters atop the pipeline route on Dakota Access property. During the hours-long confrontation, some protesters prayed while others set fires and threw objects at police. Officers responded with pepper spray and less-lethal bullets.
South Central District Judge Cynthia Feland dismissed the felony charge against several of the protesters assigned to her on Thursday.