Water Protector Defense Attorneys Warn of “Breakdown in Separation of Powers”

From late 2019 by means of 2021, a minimum of 115 Water Protectors have been arrested in Aitkin County, Minnesota (inhabitants 15,800) for his or her resistance to Enbridge Inc.’s Line 3 tar sands pipeline. Immediately, 50 defendants proceed to face prices, in response to Marla Marcum of the Local weather Disobedience Middle, which has been monitoring circumstances and providing assist to defendants. Open circumstances embrace seven social media-based prosecutions together with of Winona LaDuke, co-founder of the Native advocacy group Honor the Earth, and Tara Houska, an administrator of the Giniw Collective Fb Group. These circumstances, which reference social media exercise in charging paperwork, have produced trumped-up prices starting from “harassment of legislation enforcement” for yelling to prices that derive from Minnesota’s 2002 Anti-Terrorism Act, which was handed in response to the September 11 assaults.

“When Minnesota and different states handed Anti-Terrorism legal guidelines within the wake of 9/11, we have been deeply involved that they’d be used to stifle protest and dissent. That’s clearly what is going on on this case,” Sue Udry, govt director of Defending Rights & Dissent, advised Truthout. “The truth that a legislation meant to arm legislation enforcement and prosecutors with the instruments to ‘be certain that terrorists who commit atrocities in our state are delivered to justice and obtain most punishment to match their dastardly crimes,’ has been deployed in opposition to protesters engaged in civil disobedience is harmful, and disingenuous,” she continued.

Different open circumstances embrace felony “aiding tried suicide” prices that protection motions have characterised as a “misinterpretation of the legislation” by the Aitkin County Lawyer’s Workplace, warning that the circumstances may set broadly dangerous precedents for protest rights.

Writing in response to Aitkin County Atorney James Ratz’s pursuit of aiding tried suicide prices in opposition to protesters who crawled right into a phase of non-functioning pipeline, protection lawyer Jordan Kushner argued:

Beneath the state’s misinterpretation of the legislation, any protester who climbs and stays in a tree the place they’re in potential hazard of falling down, attaches themselves to a building automobile the place they may probably be topic to an accident, sits on a roadway the place they may probably be run over, or engages in any motion that locations them in potential hazard, or helps another person commit such actions, may very well be accused of aiding an tried suicide.

In whole, the remaining 50 defendants face a complete of six felonies, 28 gross misdemeanors and 115 misdemeanors, in response to a Truthout evaluation.

“Instances Have Simply Completely Stalled”

Protection attorneys are actually elevating alarm about delays within the Water Protector circumstances in Aitkin. Protection lawyer Kira Kelley advised Truthout that “prior to now three months Water Protector circumstances have simply completely stalled.” Some defendants have been ready for hearings since June and July.

A Truthout evaluation exhibits that Water Protectors in Aitkin County face an extended court docket course of in comparison with standard felony defendants within the county. The evaluation examined all felony circumstances filed in Aitkin over the primary 5 months of 2021. Throughout the five-month interval, prices have been filed in opposition to 61 Water Protectors, 38 of which, or 62.3 p.c, stay open. This compares to 202 standard felony circumstances, of which solely 18, or 8.9 p.c, stay open. Meaning Water Protector circumstances from January-Might 2021 are seven instances extra prone to stay unresolved, in comparison with non-Water Protector circumstances. (This evaluation excludes 14 “dormant” circumstances, together with one “dormant” Water Protector case.)

When circumstances are dragged out, defendants stay in a state of limbo for longer, the place they are often stigmatized as felony defendants by employment, housing and academic establishments. A delayed case extends the time defendants should adhere to bail situations and be accessible to seem in court docket. Bail situations have barred defendants from attending public hearings about Enbridge-owned infrastructure and meant that in the event that they obtained arrested once more or entered an “Enbridge Exclusion Zone,” their bail may very well be revoked resulting in their incarceration and/or they may very well be charged with extra crimes.

These revelations exacerbate worries that Water Protectors aren’t receiving equal due course of within the county, given the existence of a scheme that noticed the Aitkin County Sheriff’s Workplace obtain $355,393 of direct funding from Enbridge Inc. for issues like crowd management supplies and time spent policing Water Protectors who opposed the corporate’s pipeline, which was accomplished in September 2021. Protection lawyer motions argue the association quantities to third-party affect on legislation enforcement, one thing prohibited by the due course of doctrine.

This additionally follows revelations that the Aitkin County Lawyer’s Workplace supported the County Sheriff Daniel Guida’s pursuit of felony prices in opposition to protection attorneys who sought to compel Guida to testify beneath oath concerning the monetary association.

Is the Court docket Letting the Prosecutor Run the Present?

Prosecutions within the county have stalled, partially resulting from what protection attorneys describe as a “breakdown within the separation of powers” between the county lawyer (govt department) and the court docket system (judicial department).

Protection attorneys advised Truthout that court docket clerks and judges within the county have allowed the county lawyer to dictate listening to schedules, leading to vital delays within the circumstances, in response to protection attorneys and court docket data.

“I’ve by no means had a clerk attain out to me from Aitkin to see when I’m accessible,” Claire Glenn, an lawyer with the Water Protector Authorized Collective and the Civil Liberties Protection Middle, advised Truthout, referring to the usual observe that sees courts coordinate equally with protection attorneys and prosecutors when scheduling court docket dates. “It’s weird that clerks really feel so beholden to the prosecutor, even after months of not receiving a response. The courts’ clerks are appearing just like the prosecutor’s secretary slightly than an unbiased arbiter who the prosecutor must be deferring to,” Glenn continued.

In a single case involving felony and gross misdemeanor prices, court docket transcripts obtained from the county by Truthout present that on November 10, 2022, prosecutors used an unprecedented argument to justify court docket delays.

Within the listening to, assistant prosecutor Sarah Winge advised the court docket that the day’s listening to was being canceled resulting from county lawyer Ratz’s then-upcoming “contested” election marketing campaign.

The decide had by no means heard such an argument. “I’ve been concerned within the felony justice system for about 50 years,” mentioned Decide John DeSanto. “The prosecutor’s workplace shall be conducting its duties and obligations no matter elections.”

Throughout the listening to, Glenn expressed concern that “there are such a lot of Water Protector circumstances which are simply languishing at this level.”

“We all know that [Aitkin County Attorney] Ratz didn’t need to litigate these circumstances when there was an election pending, regardless of the motive, and has simply refused to reply to the clerks’ emails to schedule hearings,” Glenn advised Truthout.

Glenn later advised Truthout that the clerk knowledgeable her in early December that the County Lawyer’s Workplace “lastly” responded to the court docket’s questions on their schedule. However that doesn’t clarify why the court docket clerks (the judicial department) aren’t consulting protection attorneys and prosecutors equally. “It’s a breakdown within the separation of powers,” Kelley advised Truthout.

Ratz and the Aitkin County court docket administrator haven’t responded to e-mail inquiries.

Protection Attorneys Intimidated and Sidelined

Together with “languishing” Water Protector circumstances and the “breakdown within the separation of powers,” protection attorneys are nonetheless adjusting to Ratz’s complicity in obvious intimidation by Sheriff Guida. A movement by Kelley particulars how Guida refused a subpoena to testify beneath oath. That represents a “breakdown within the rule of legislation,” because it’s the job of the sheriff to implement subpoenas. Not solely this, Guida and Ratz sought trespassing prices in opposition to the attorneys — Kelley and Sandra Freeman — after they tried to serve Guida with the subpoena exterior his house.

In a November movement, filed on behalf of Winona LaDuke, Glenn wrote to the court docket — in response to the prosecutor’s pursuit of felony prices in opposition to Water Protector protection attorneys Kelley and Freeman — saying:

Mr. Ratz’s conduct provides a brand new dimension to the disturbing nature of this whole incident. Mr. Ratz is himself a Minnesota-barred lawyer, apparently failed to acknowledge any downside with Sheriff Guida’s misconduct. Not solely that, he doubled-down on Sheriff Guida’s misconduct by referring Attorneys Kelley and Freeman for prosecution.

Together with the obvious preferential remedy given to prosecutors when scheduling circumstances, attorneys representing Water Protectors in Aitkin County are going through the specter of their very own felony prosecution for pursuing subpoenas.

“It’s no exaggeration that criminalizing members of the bar who characterize the accused merely for doing our jobs heralds a complete breakdown of the rule of legislation,” Glenn wrote. Her movement additionally drew consideration to the existence of a “file” concerning the incident that features a number of “stories” — which the county lawyer has refused at hand over.

The attorneys are coping with all these dynamics whereas concurrently defending Water Protectors from egregious authorized theories.

Little Prospect for Justice

Throughout the November 10, 2022, listening to, Decide DeSanto mentioned he would take no additional motion to hurry up the court docket course of — until the defendant filed a movement for a speedy trial, which might provoke a 90-day countdown for trial.

Nevertheless, with grossly exaggerated prices hanging over them, heading to trial could also be a false alternative for the Water Protectors, since defendants need circumstances dropped, not taken to a trial that dangers years in jail.