Jessee Appeal Victory is Win, Win, Win and Win Again
On November 7, 2018, the North Dakota Supreme Court ruled in favor of Water Protector Rebecca Jessee, reversing her lower court conviction arising out of a November 15, 2016 prayer walk in commemoration of missing and murdered Indigenous women. Jessee and 26 others, including her partner Mark Hebert of Reno, NV, and Brian O’Keefe of Santa Fe, NM, were arrested close to a railway track near Mandan. The arrests were aggressive and O’Keefe suffered substantial injuries including broken ribs that required hospitalization.
The walk had attempted to access a DAPL storage site to pray and participate in a ceremony dedicated to calling attention to the troubles that arise from “man camps” – temporary housing for oilfield workers that become havens for gendered violence and human trafficking of Indigenous women and girls. Police blocked the group at the
Brian O'Keefe's trial had been set for November 27, 2018. But on November 16, 2018, the state filed a motion asking for a continuance on the grounds that an "essential witness" (unnamed) had "unresolved conflicts” (unspecified). In her reply motion, Power urged the prosecution to either proceed with the trial as scheduled or dismiss based on the Jessee decision. On November 23, 2018, the Court dismissed O'Keefe's case.
On December 6, 2018, citing their decision in the Jessee case, the North Dakota Supreme Court reversed the lower court conviction against Mark Hebert. Also on December 6, the Court denied the prosecution’s request to rehear the Jessee decision. “The Supreme Court in North Dakota has made it clear that my clients and Mark Hebert did not tamper with any public service as they were attempting to march to a DAPL site to protest the railroad tracks, ordered them to disperse and proceeded to arrest them.
The procession was to commemorate the disappearance of Indigenous women,” said Power, who also represented O’Keefe. WPLC volunteer attorney Melinda Power argued the appeal before the five Supreme Court justices on September 7, 2018 in Bismarck, ND. Power focused her argument on the definition of tampering. In their ruling, citing numerous precedents from North Dakota case law, the justices agreed that Jessee’s mere presence at the railroad tracks did not constitute “tampering” and they reversed the guilty verdict.
“I feel a weight lifted off me from what was a burdensome and scary process, of which I had no prior experience,” said O’Keefe. “It was a big dark space with legal monsters. But the WPLC was extremely helpful in getting me together with Melinda who showed the determination and tolerance (of me) to ‘stay on the case’. It was that effort and commitment that provided the outcome— dismissal. I feel much relief that I can get on with my life. My family shares in that. I will continue being an activist particularly in the arena of decolonization.”
By Sarah Mansur
Law Bulletin staff writer
Nearly a year ago, President Donald Trump signed an executive order allowing the Dakota Access Pipeline construction to cross Lake Oahe in North Dakota, just upstream of the Standing Rock Sioux Tribe reservation.
In 2016, months before Trump was inaugurated and signed his Jan. 24, 2017 order, violence broke out between activists protesting the pipeline and law enforcement, prompting a large number of arrests.
Chicago attorneys Melinda L. Power and Patricia J. Handlin are among the dozens of out-of-state lawyers who traveled to North Dakota two years ago to represent those arrested during protests of the nearly 1,200-mile pipeline, which spans from North Dakota to downstate Illinois.
Members of the Standing Rock tribe and Cheyenne River Sioux Tribe, along with many activists, have been trying to prevent oil from flowing through the pipeline under Lake Oahe, which is a primary source of drinking water for the tribes and considered sacred to the tribes’ spiritual practices.
Before she first went to North Dakota in November 2016, Power said she watched news coverage of the protests and felt compelled to provide her legal assistance.
“I thought, ‘This is such an injustice,’” said Power, of the West Town Law Office. “I saw a video of a woman from New Zealand, a lawyer who went to support the protesters. I said to myself, ‘If she can come from New Zealand, I think I can go up from Chicago.’”
The Water Protectors Legal Collective, a legal support group for the Dakota Access Pipeline resistance at Standing Rock, was forming around that time.
“So there was a vehicle for me to go up there and help contribute my legal skills,” she said.
Power and Handlin, who traveled to the pipeline protests in December 2016, volunteered at the Standing Rock Reservation to offer legal help to those who were arrested or needed legal advice.
“The reason it interested me so much is that I’m one of those people very concerned about climate change and I support renewable energy. I was concerned about the pipeline,” said Handlin, of Patricia J. Handlin & Associates. “I was outraged by the conduct of law enforcement against what I came to learn were peaceful and prayerful protesters.”
Power and Handlin agreed to represent clients who were charged during the protests with misdemeanor state crimes, such as disorderly conduct or resisting arrest.
Their clients were part of the more than 800 people who were charged with state crimes during the pipeline protests from September 2016 through February 2017, according to the Water Protector Legal Collective’s website.
Roughly 311 of those state criminal cases have been dismissed, according to the group’s website, and about 111 cases concluded with a plea agreement. About 324 cases are still pending.
In addition to the state criminal cases, there is federal litigation involving the pipeline, including the Standing Rock tribe’s lawsuit against the Army Corps of Engineers.
Reversing a decision from the Obama administration, Trump’s Jan. 24 order approved an easement for construction of the pipeline.
In October, U.S. District Judge James E. Boasberg ruled that the federal permits authorizing the pipeline to cross the Missouri River at Lake Oahe violated the National Environmental Policy Act but his order still allowed oil to flow through the pipeline. That case, filed in July 2016 in Washington, D.C., federal court, is Standing Rock Sioux Tribe, et al. v. The Army Corps of Engineers, et al., No. 16-cv-01534.
Power is also involved in a civil rights class-action lawsuit alleging the excessive use of force by police officers against protesters during a conflict on Nov. 20, 2016.
That case is Vanessa Dundon, et al., v. Kyle Kirchmeier, et. al., No. 16-cv-406.
In the complaint, lead plaintiff Vanessa Dundon claims she was struck in the face and eye by a teargas canister and may never regain vision in her right eye.
The legal team in that case filed an interlocutory appeal to the 8th Circuit Court of Appeals while the lawsuit proceeds in the U.S. District Court for North Dakota.
Power and Handlin, like many of the attorneys who volunteered to take on pipeline clients, have a history representing protesters and taking on civil rights cases.
For example, Power represented protestors arrested for speaking out against the Gulf War in 1991 as well as five of the NATO protestors arrested in Chicago in May 2012.
“One of the reasons I became an attorney was to ensure that people have the right to stand up and speak and protest. I’m an activist myself. I’m not just an objective attorney,” Power said.
“I’m really happy to represent people who are saying, ‘We don’t think things are going well in this system for a lot of people, and we want to be part of a movement that changes things.’” she added.
Melinda Power works in a storefront law office on Division Street, between the two gateways that demarcate the Puerto Rican community. Many of her everyday clients are members of the Puerto Rican community, for whom she handles criminal defense and basic legal needs such as divorces and wills. But Power is also an active fighter for political prisoners and part of the legal team supporting the defendants at the Dakota Access Pipeline project in North Dakota. Read More
LawPulse: Lawsuit Challenges Warrantless Cellphone Tracking
By Matthew Hector
A Chicago lawyer is suing the city and other defendants for gathering cellphone information in a way that violates individual privacy and should require a warrant.
Stingrays aren't found solely at sea. "Stingray" is also the nickname for cell site simulators. These devices mimic cell towers, collecting data from phones. Collected data can include text messages, browser history, phone call content, and an individual's location. Read More
Melinda Power had just passed the bar exam in San Francisco in the early 1980s when she was called to Chicago to work for the Puerto Rican Liberation Movement. She was asked to help support a group of clandestine Puerto Rican independence fighters that had been sent to prison for alleged conspiracy against the United States government—she gladly accepted, and did not look back. Read More
Lawyers for the city of Chicago told a federal judge today they have reached a $6.2 million settlement with more than 800 plaintiffs in a class action lawsuit stemming from the mass arrests of protesters during a 2003 demonstration against the Iraq war. Read More
In other council action, the mayor also proposed changing the city's disorderly conduct ordinance after a federal appeals court ruled that some of the language could stifle free speech rights. Read More
When the final bill for a 2003 anti-war march lawsuit brought by hundreds of people Chicago police arrested came before the city’s Finance Committee Monday, aldermen were looking at a figure nearly twice the size of the $6.2 million settlement reached in February. Read More
A Chicago man accused of threatening to blow up a train overpass during the NATO summit may have been drunk and just running his mouth, his attorney said today. Prosecutors have charged Sebastian Senakiewicz, 24, with falsely making a terrorist threat. A purported member of the anarchist group Black Bloc, Senakiewicz allegedly boasted that he had a carload of explosives that could destroy half of a train overpass and that he was determined to use them during the summit. Read More
Date: March 15, 2012
This week we're looking at some of the ways Cook County makes money when it locks people up. We've seen that the county is one of thousands of government bodies in the U.S. making millions of dollars each year from the inflated prices inmates and their families pay for phone calls from jail. Read More