Today, the CLDC submitted a public comment in support of a petition to the North Dakota Supreme Court that urges the Court to temporarily allow out-of-state attorneys to defend water protectors arrested at Oceti Šakowiŋ Camp at Standing Rock, North Dakota. You should too! Follow the instructions on how to submit your public comments to ensure the constitutional rights of the water protectors are upheld in the courts.
Two weeks ago the Water Protector Legal Collective (WPLC) submitted a petition to the North Dakota Supreme Court urging the Court to allow out-of-state attorneys to temporarily practice in North Dakota for the purpose of defending those arrested at Standing Rock. By the admission of the state, county authorities, and the court administrators in Morton County, there is an extreme burden to the court system in Morton County. According to the petition, “[d]efendants are being put to an impossible choice: go without an attorney, be represented by an attorney too burdened to provide effective assistance or forgo their right to a speedy trial by having to wait until such time an attorney becomes available. None of these choices are acceptable.”
Since the start of the resistance to the Dakota Access Pipeline at Standing Rock, around 575 people have been arrested, 949 misdemeanor charges and 58 felonies filed (we recently got over 140 additional felony charges dismissed!). Of the 570+ defendants, 79 public defenders have been assigned to 265 of the defendant’s cases. This is likely in addition to the normal, typically overburdened, case load of public defenders. As of the filing of the petition, 264 water protectors were without an attorney. For many of the defendants who, normally, would qualify for a public defender, their applications were denied based on extraordinarily minor clerical errors. Some defendants that Lauren and I have spoken with view the denials as an expression of the hostility harbored by the state and court staff against the water protectors.
The North Dakota Commission on Legal Counsel for Indigents is requesting an additional $670,000 to pay for additional public defenders and contract attorneys from around North Dakota. Nothing has been granted yet. There are some privately retained lawyers involved in the water protector defense, but there are limits to the availability of private representation. First, there do not seem to be funds available to hire a private attorney for each defendant. Second, even if there was enough money, there are a limited amount of attorneys, sympathetic or not, in Morton County and the surrounding areas. If it’s not already obvious, there are many attorneys, like the some of the local public, who have a particularly negative view of the water protectors (thanks in part to the inflammatory rhetoric spewed by the Morton County Sheriffs). For the private North Dakota attorneys that have been retained to represent the water protectors, many of them can no longer take any additional cases due to caseload or conflicts. Third, as the National Lawyers Guild has pointed out, “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.” The WPLC has reached out to countless ND attorneys since the arrests started in August, but there has been very little in the way of response or support (but thanks to the AWESOME ND lawyers who have stepped up!!).
The lack of available defense attorneys, the cavalier attitude of prosecutors, and a worn-out and frustrated court staff could turn Morton County into the site of another mass violation of individual constitutional rights. Every criminal defendant has a right to counsel. As I heard one former judge from New York put it, the situation in North Dakota is a “5th and 6th Amendment crisis in the making.” We agree.
If you would like to submit a public comment, you must email Penny Miller, Clerk of the Supreme Court, at firstname.lastname@example.org or write, attn. Penny Miller, 600 E. Boulevard Ave., Bismarck, ND 58505-0530. Please read the petition and the Court’s order before you comment. Comments must be submitted by 4pm on December 30th. We recommend the tone of comments be kept short and professional as to not reflect poorly on the water protectors who seek justice from these Courts.