BISMARCK - When Mary Redway returned to North Dakota in February for a prayer walk commemorating the camps that opposed the Dakota Access Pipeline, the experience was moving, she said.
"It was really great to be walking with old friends, people we hadn't seen for a year, and to be revisiting sites and to be offering prayers and reflections," she said.
Redway made three visits to the camps in southern Morton County from September 2016 to February 2017, staying there for about four and a half months, she said. In October 2016, she was arrested with 140 others while marching along the pipeline route in a pasture off State Highway 1806.
A year later, she was convicted of misdemeanor disorderly conduct for which she served four days in jail.
"There's no getting that time back," she said earlier this month from her home in Rhode Island. In the months since her release, she's worked on other defendants' cases with the Water Protector Legal Collective in Mandan.
She and co-defendant Alex Simon were the first DAPL protest defendants sentenced to serve incarceration for alleged crimes stemming from the monthslong protests. On Tuesday, Redway will be back in North Dakota before the state Supreme Court for oral arguments in her and Simon's joined appeal to reverse their misdemeanor convictions for acquittal.
Attorney Sam Saylor, of the Freshet legal collective, is representing Redway and Simon with attorney Bruce Nestor. He said their cases come down to insufficient evidence and constitutionally protected activities.
Saylor noted Simon's situation: linking arms with others.
"Linking arms is a common expression of solidarity: 'I'm with you, friend. This is what we're doing,'" Saylor said. "To see that it's anything but a simple expression of solidarity with someone, to turn it into some sort of nefarious deed, I think doesn't rise to the level for what is necessary for a criminal conviction."
He also said his clients "were not identified as doing any particular action by any witnesses at trial," though they were photographed with the group in the pasture.
Redway and Simon were the only defendants Surrogate Judge Thomas Merrick convicted of the five people joined for the two-day court trial in October. Afterward, the Water Protector Legal Collective decried their sentences as disparate treatment and bias.
Merrick said he "intended the sentences I imposed to be neither too harsh nor too lenient." He also waived Simon's court fees. Redway was ordered to pay $1,750.
"I think that I was unjustly convicted, and I would like to see that overturned," she said. "I was exercising my First Amendment rights, and I feel they were grossly abused by the court."
Morton County Assistant State's Attorney Brian Grosinger, who prosecuted Redway and Simon, did not return two phone messages and an email requesting an interview regarding the appeals. In briefs, he described protesters' conduct as "criminal" and their behavior as "alarming, violent and tumultuous" on the day of the pasture march.
"A claim of constitutionally protected activity does not excuse or allow the crimes committed," Grosinger wrote.
Saylor said he's considered what a precedent could bring for similar situations.
"You go out and want to express solidarity with a friend over an issue you feel strongly about and you link arms: Does that mean the officers can snap you up and you can be convicted of physical obstruction for linking arms?" he said.
Redway and Simon's appeal marks the second oral arguments the state Supreme Court will hear from a DAPL protest case. Last year, Kevin Decker appealed his misdemeanor conviction for disorderly conduct, arguing insufficient evidence and a Sixth Amendment violation. The high court upheld his conviction but split 3-2.
Rebecca Jessee is the only other appellant. Supreme Court Clerk Penny Miller said last month that her case is awaiting transcripts and briefs. Northwest District Judge Daniel El-Dweek convicted Jessee in January of felony tampering with a public service, related to a protest march met by law enforcement at a railroad crossing in November 2016 west of Mandan.
Meanwhile, about a third of the related criminal cases have yet to be resolved. Trial court administrator Donna Wunderlich, of the South Central Judicial District, said, as of April 11, 552 cases have closed, 160 are open, 92 are inactive with warrants and 24 have satisfied deferred impositions, meaning the crime is taken off the record.
Trials extend to September and November, more than two years after the first arrests of protesters.