BISMARCK-Linking arms and carrying signs are apparently the known extent of two pipeline protesters' conduct that led to their criminal convictions and joint appeal before the North Dakota Supreme Court.
Justices heard arguments Tuesday in the second appeal stemming from criminal cases of the monthslong protests of the Dakota Access Pipeline. Last fall, Surrogate Judge Thomas Merrick convicted Mary Redway and Alex Simon of misdemeanors from a march in October 2016 near pipeline construction in a pasture off State Highway 1806 in Morton County.
"Frankly, I think it was a little mysterious to everyone what the acts by Mr. Simon and Ms. Redway were at issue here," appellant attorney Sam Saylor told the state Supreme Court, asking the bench to reverse the convictions.
Redway and Simon were arrested with 140 others for trespassing. Merrick convicted them of disorderly conduct and Simon of physical obstruction of a government function. He also sentenced them to days in jail as the first defendants from the DAPL protests to serve incarceration.
They were the only co-defendants convicted at their trial with three others last fall. Chief Justice Gerald VandeWalle asked why.
Morton County Assistant State's Attorney Brian Grosinger said co-defendant and journalist Sara Lafleur-Vetter "was acquitted because she made the journalist claim" while there was no image evidence of another co-defendant and a third was seen retreating from the pasture as officers issued orders to leave.
Photographic evidence placed Redway and Simon with the group of 150 to 200 people. Saylor said the group didn't come within 200 yards of the construction site.
Justice Daniel Crothers asked for the "proof of disorderly conduct, starting when and ending when."
Grosinger said no arresting officer could be found to testify but such evidence included "locking arms," "facing down law enforcement" and "carrying signs."
"Carrying signs is clearly First Amendment protected activity, is it not?" Justice Jerod Tufte asked.
Grosinger said signs could have been used as weapons during the "hostility and vitriol" in the pasture, when law enforcement formed "skirmish lines" and gave commands in efforts to make protesters leave. One officer was hit with pepper spray.
"This was not a bunch of happy-go-lucky people expressing their opinion," Grosinger said. "They were trying to get to the construction site."
The mass arrests were "a last resort," he also said.
Saylor said it's "unclear what my clients were convicted of at all," also noting what he said is constitutionally protected activity in the pasture march.
"The trial record is bereft of actions, certainly by my clients," he said.
Redway traveled from Rhode Island for Tuesday's arguments. Simon did not attend.
VandeWalle said the court took the matter under advisement. The only adjudicated appeal from the DAPL protests took 12 weeks for an opinion. One other appeal is pending.