Motion to Quash the Arrest Granted: Case Dismissed 8/27/19

Chicago police officers arrested our client, J. Rivera, while he was sitting outside a methadone clinic, drinking methadone that he had just been prescribed minutes before. They charged him with serious felonies that would have resulted in many years in prison.

The police claimed they had been following him for almost two and a half months, since the time an informant had allegedly told them that Mr. Rivera was part of a “large Chicagoland narcotics organization”. The police admitted that they did not see Mr. Rivera engage in any illegal activity during those two and a half months. Nor did they take any photographs, video or prepare any reports to document any of the “suspicious behavior” they claim they saw Mr. Rivera engage in during their supposed investigation. It wasn't until four days after police arrested Mr. Rivera that they prepared a report claiming to have seen Mr. Rivera engaged in “suspicious activity” while they were following him. The "suspicious behavior" he apparently engaged in was sitting in his car, looking around and looking at his cell phone! If that is suspicious behavior justifying an arrest, the police could arrest any of us!

The day the police arrested Mr. Rivera, one officer claimed he could see Mr. Rivera as he looked in the window of Mr. R’s car. However, due to the diligent work and technological skill of co-counsel Philip DeVon, not only was the seized and impounded automobile Mr. R. had been sitting in tracked to an auto pound, but we obtained an order allowing us to inspect and photograph the vehicle. The car had “tinted windows”, making it physically impossible to see what the police officer claimed to have seen.

After the Court heard the evidence (or lack thereof), the Court granted Mr. Rivera’s Motion to Quash the Arrest and suppressed any evidence seized by the police. On August 27, 2019, the prosecution dismissed the case and Mr. Rivera walked out of court a happy - and free - man

Case Dismissed! Prosecutor Admits: Our Client was the Wrong Man 7/2019

For 2 1/2 years, Attorneys Sam Heppell and Elizabeth Mazur had worked assiduously to prove that the Peoria Police Department had wrongfully arrested their client, DJ. The Peoria police accused DJ of participating in an armed robbery of a cab driver. Liz and Sam knew (as did DJ) that he couldn’t have been the armed robber, and he had text messages to prove he was somewhere else at the time of the robbery. About a year and some months after DJ’s arrest, Attorney Melinda Power was added to the team. We filed, argued and lost a series of pre-trial motions, but we were determined to persevere until victory. We hired an expert to establish the disparity between DJ’s location at the time of the robbery and the robbery itself and an expert to testify about false identifications. And, we possibly made new law in Illinois when Judge Gilfillan granted our motion to permit our expert to testify by video (saving our clients thousands of dollars).

We walked into court on July 15, 2019, ready and looking forward to trial. Meanwhile, the prosecution reviewed the evidence and admitted that, indeed, the men who had committed the armed robbery did not include our client. All charges were dropped against our very happy client. The dedicated, hard working and happy team walked out of court and, along with DJ, were finally vindicated.

November 23, 2018 Judge Haskell dismisses Felony and misdemeanor charges against Water Protector

The Court set the trial of Brian Okeefe for November 27, 2018. In an attempt to continue the trial, the state’s attorney’s office filed a motion to continue the trial on November 16, 2018, claiming that an “essential witness” (unnamed) had an “unresolved conflict” (unspecified. Attorney Power immediately replied that the trial had been set since July 2018, that she and her client had non-refundable tickets, and that the motion lacked specificity. On November 21, the state’s attorney moved to dismiss the case and on Friday, North Dakota Judge Haskell granted the request. Another water protector wins his case.

November 6, 2018 N. Dakota Supreme Court reverses Water Protector's Felony Convicion

    • Press Release: Water Protector Wins Appeal at N. Dakota Supreme Court

Posted on November 7, 2018

Mere Presence at Railroad Tracks Is Not Tampering With a Public Service: State Felony Conviction Reversed

Mandan, North Dakota: Yesterday, 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 were arrested close to a railway track near Mandan. They had attempted to access a DAPL construction site to pray and participate in a ceremony aimed at calling attention to the adverse social and health impacts of the oil industry and “man camps” – temporary housing for oilfield workers that become havens for gendered violence and human trafficking of Indigenous women and girls. Law enforcement blocked the group at the railroad tracks, ordered them to disperse and proceeded to arrest them.

WPLC volunteer attorney Melinda Power, who argued the appeal before the five Supreme Court justices on September 7, 2018 in Bismarck, ND, called the decision “a good victory for Rebecca Jessee, everyone arrested on November 15th, and for Water Protectors generally.”

The court ruled that Jessee’s mere presence at the railroad tracks did not constitute “tampering”. The opinion,written by Justice Daniel Crothers, states that “…no evidence supports the finding Jessee was tampering with Burlington Northern Santa Fe Railway property based on her passive presence on railroad property. Jessee did not alter the railroad tracks in a harmful manner.”

Power noted that the court also acknowledged the goal of the people who had gathered for the prayer walk that day was to go to the pipeline construction yard, and, by making that finding, implicitly found that the railroad tracks were not the intended destination of the walk.

“That had been a contested fact,” she said. “This ruling undercuts the lower court’s conclusion that people were trying to interfere with the railroad tracks. The Supreme Court acknowledged that the group’s goal was to get to the construction yard, but they were stopped at the railroad tracks by police.”

Pleased with the positive outcome, Jessee praised her defense counsel for “speaking softly and carrying a big stick.” Jessee says she stands with Water Protectors adding that the “the elephant has not left the room.” In fact, her partner will appear today in Bismarck for his own appeal hearing.

Power expects this ruling to be useful to other WPLC attorneys defending Water Protectors arrested on the same day. She pointed out that at the trial level, no documentation had been introduced that the train stoppage ordered by law enforcement caused any monetary loss or any delay in service.

“There was no documentary evidence or testimony presented to the court, that any costs to the railroad were directly attributable to Ms. Jessee or any other defendant,” she explained.

Power praised the Court’s opinion, “They did their research and found good North Dakota law that defines what tampering is. As I argued, tampering requires that there be a harmful change or alteration. I give the Supreme Court a lot of credit for their commitment to researching North Dakota law and applying the correct legal standard.”

Links:

North Dakota Supreme Court Opinion, dated November 6, 2018: 20180047_op_state_v_jesse

Press Release, dated January 5, 2018:  Second Felony Conviction From Man Camp Action

#MMIW       #NoMoreStolenSisters

Posted in Press ReleasesUpdates

June 22, 2018 Not Guilty! Judge finds 3 water protectors not guilty at conclusion of trial

Court Update: Three Water Protectors Found Not Guilty – Eight More Have Charges Dismissed

Posted on 

 https://waterprotectorlegal.org/court-update-three-water-protectors-found-not-guilty-eight-more-have-charges-dismissed/

Photo (from left): Anthony Provenzano, Moira Meltzer-Cohen, Cindy Lou Eyerly-Santo, Melinda Power, and Bradley Duquette after their wins at trial in Mandan, ND.

Eight Water Protectors have had all charges dismissed because their cases were substantially the same as three who went to trial and were acquitted last week. All 11 were accused of obstructing law enforcement’s efforts to clear the Oceti Sakowin camp on February 23, 2017, pursuant to Governor Burgum’s executive order declaring the camp hazardous to people and the environment.

On Friday, June 22, Anthony Provenzano, Cindy Lou Eyerly-Santo, and Bradley Duquette were found not guilty of Physical Obstruction of a Government Function after bench trials before Judge Daniel Narum in Morton County Court.

The government argued at trial that the presence of each of these Water Protectors at Oceti was an intentional act; that it was a violation of the governor’s order, whether or not they knew about that order; and that their presence slowed law enforcement’s efforts to clear the camp. Testimony from officers as well as the three Water Protectors, however, suggested that they had not been given notice of the executive order, nor been given any warning or opportunity to leave the camp. In finding the Water Protectors not guilty, Judge Narum pointed out that the state had failed to present facts that would show how any of the three had intentionally obstructed a government function.

Bradley and Cindy Lou were represented by volunteer attorney Melinda Power, and Anthony was represented by Water Protector Legal Collective Staff Attorney Moira Meltzer-Cohen.

Today, the prosecutor filed a Motion to Dismiss charges against eight additional Water Protectors from the same arrest date who were scheduled for trial together this week, because their case is “substantially the same.” There are over a dozen similar cases from the camp clearing that remain scheduled to proceed to trial in the coming weeks.

Photo (from left): Anthony Provenzano, Moira Meltzer-Cohen, Cindy Lou Eyerly-Santo, Melinda Power, and Bradley Duquette after their wins at trial in Mandan, ND.

Eight Water Protectors have had all charges dismissed because their cases were substantially the same as three who went to trial and were acquitted last week. All 11 were accused of obstructing law enforcement’s efforts to clear the Oceti Sakowin camp on February 23, 2017, pursuant to Governor Burgum’s executive order declaring the camp hazardous to people and the environment.

 

People v. Daniels: Not Guilty of Class X possession with Intent to Deliver Ecstasy 4/19/18

A package arrived addressed to my client from Germany.  This was a package the evidence did not establish was ordered by, or paid for by the client or, that he even knew about before it arrived.  The package had been intercepted in NYC by customs, who discovered ecstasy in the package.  They sent the package to Maywood, and an invisible tracking device and powder detectable on the hands on anyone who opened the package, was placed inside.  

Upon delivery by an undercover postal inspector, my client went searching for his regular mail carrier to see what this was.  He couldn't find him and returned home and then wrote return to sender on the package and put a slash through his name.  En route to the garage to get his car to go to the post office, he got curious, opened the package, realized he didn't know what it was, and didn't want it and threw it away.  Shortly thereafter, Cook County police arrived, and arrested him.  No evidence of drug sales (baggies, scales, police scanner, unaccounted for money, guns or other contraband) was found in the residence. 

IT Expert witness P. DeVon testified that someone had gotten into or made an account with the client's name and address and had used it to order gift cards from China to be sent to various addresses in the U.S.  His compelling direct examination by co-counsel Rachel White Domain revealed that someone had used his name and address unbeknownst to the client. 

The sheriff's officer admitted that he had no evidence that client knew what was in the package, knew wha the package was when it arrived, had paid for or ordered it.  The Judge found client not guilty and stated that there was not proof beyond a reasonable doubt that the client was guilty.  Client's mother, who had attended every court hearing, cried with relief and hugs were exchanged between the client's attorneys, client and his mother.  

People v. Smith: Judge finds Mr. Smith not guilty of possession of cannabis with intent to deliver

March 6, 2018 victory in court

Chicago police officers arrested Anthony Smith in 2016 as he was driving on Kimball Street.  They originally claimed he was part of a plan to sell cannabis to an undercover police officer.  However, no drugs were recovered on him or in his car.  Finally, a hearing to quash his arrest and suppress the search was heard on March 7, 2018.  At the motion, the three officers who were called to testify by the defense admitted they did not see him engage in any illegal activities.  The witness for the state testified that he saw the back of the head of someone sitting in a car and could tell by the way that person leaned forward and towards the alleged seller of the cannabis that he was involved in an illegal drug transaction!  Although the Judge denied the Motion to Quash, she told all parties that we could adopt the testimony from the motion and immediately proceed to trial.  This we did and she quickly found Mr. Smith not guilty.  Mr. Smith was happy he could go and pick up his twins from school and not worry about having to come back to court again.  

People v. Torry: Judge reverses finding of guilty and declares: Not Guilty of Violation of a Concealed and Carry

In April 2017, as Mr. Torry drove to his friend's house, he pulled into the parking space behind the friend's house.  Two Chicago police officers who had been following him, jumped out of their car, stopped, seized and searched him and his car with no legal justification.  

One of the officers recovered a gun, in a holster and concealed in the console of the car.  Mr. Torry told the officers he had a permit to have a gun and that he had done nothing illegal, which is correct.  Nonetheless, the officers arrested him.  After the officers and Mr. Torry testified at trial, the Judge found him guilty.  However, the guilty finding was a mistake.  His attorney, Melinda Power, filed a Motion to Reconsider and, finally, on February 26, 2018, the Judge agreed and reversed himself and found Mr. Torry not guilty.  

Water protector's case finally dismissed after court hearing on 1/22/18

Water Protector Stefan Silk, a young Lakota Sioux from Standing Rock, was arrested on 10/27/16 while protesting the construction of the now open Dakota Access pipeline.  Mr. Silk maintained that he wasn't guilty of the charges of Engaging in a Riot and Public Nuisance.  He and I agreed that we would fight this case as much as we could.  Finally, after two hearings on two motions to dismiss, two depositions of the two alleged arresting officers (one of whom admitted he was never at the scene and just filled in paperwork), 10 motions in Limine to keep out irrelevant evidence, the Court found that the state couldn't establish probable cause for Public Nuisance and he expressed reservations about their ability to prove the other charge.  The state, realizing the difficulty of their case, dismissed the remaining charge.  Stefan Silk's steadfastness proved to be the winning strategy.  He now has no more pending cases.  Mandan, North Dakota, 1/22/18

Not Guilty of Telephone Harassment declares the Judge at the end of the Trial 1/18/18

In July 2017, my client was fired from his training to be a police officer.  When he called his supervisor (four-five times) to get his gun back, instead of helping out Mr. Morales, the supervisor (a Sargent) had Mr. Morales arrested.  First, the Sgt. got an order of protection against Mr. Morales, which we vacated.  Then, he pursued the criminal case.  When the Sgt. testified, he said that Mr. Morales had waken him up at home, yet the site of the incident on the complaint was the police academy.  He further testified that my client's calls made him upset, yet he didn't file the complaint until one month later. 

The Judge found that these facts did not establish the elements of telephone harassment and found Mr. Morales not guilty.  

1/17/18 Judge admonishes arresting officer to "be more reasonable" and finds Mr. Norman not guilty.

In August, 2017, Elijha Norman was sitting in his car with his girlfriend visiting his uncles in a park in Dolton.  First on Dolton police officer, then another ordered him out of his car without reasonable suspicion that he was armed or had contraband.  When Mr. Norman asked why, instead of answering, the officers continued to order him out of the car and arrested him for "obstructing a police officer."

At trial, the police officer admitted he didn't see Mr. Norman do anything suspicious, make any furtive gestures, try to get away, or have bulging pockets.  Instead, the white officer seemed to believe that he could approach an young African American male and order him out of the car.  

Mr. Norman said no to that illegal behavior, the Court agreed and found him not guilty after a bench trial. 

November 17, 2017, Water Protector Silk's Motions Granted in Mandan, North Dakota

Water Protector Stefon Silk, a Lakota Sioux from Standing Rock reservation, North Dakota, was arrested October 27, 2016 while protesting the Dakota Access Pipeline's plans to destroy the water for his reservation.  His trial is set for January 23, 2018.  His attorney, Melinda Power, filed a series of motions regarding discovery issues, including a motion to compel the depositions of two arresting officers and another motion to get all the relevant evidence.  Mr. Silk's attorney also challenged if "probable cause" or a legal justification existed at arrest Mr. Silk. 

The Court ordered the prosecution to reply to the discovery requests, the Bill of Particulars and the deposition requests within two weeks.  The motions were successful and depositions are set for the end of December 2017. 

Victory and Justice: Murder Charges Dismissed Against Abused Spouse

August 16, 2017, Victory for an Abused Spouse Falsely Accused of Murdering her Abusive Spouse. Attorneys Michael Kanovitz, Melinda Power and Rachel White-Domain were contacted by a woman, Ms. Shumaker, who had been abused by her husband for years, was accused of murdering him and was facing 20 plus years in prison for the murder of her husband.  Forming a legal defense team, the attorneys were determined that Ms. Shumaker, far from being the accused, should be the accuser.  Research determined that she had suffered abuse for years.  On the day of his death, the spouse was still abusing Ms. Shumaker when he died.  After one and one-half years in jail, the state's attorney's office agreed that they could not prove that Ms. Shumaker intentionally killed her husband.  She walked out of jail that day, to her immense relief, the attorneys satisfaction and the joy of her family.  There are many more women who are in jail because they are accused of killing their abusers.  They need our help. 

Not Guilty Verdict in Criminal Drug Case

August 16, 2017, Melinda Power successfully defended her client, Mr. Jefferson, who was charged with delivery of a controlled substance. The Court found Mr. Jefferson not guilty of all charges at the conclusion of the trial. His wife was overcome with emotion and burst into tears when the Judge announced the verdict.

Legal Victory for Water Protector: Charges Dismissed

Standing Rock protesters' charges were dismissed as a result of motions filed by Attorney Melinda Power.

Water Protector Legal Collective
March 30 at 4:10pm ·
For Immediate Release: March 30, 2017
TWO MORE WATER PROTECTOR CASES DISMISSED

Today, in a signed order, Morton County District Judge Schmalenberger granted Motions to Dismiss filed by water protector defendants Theresa Blackowl and Olivia Bias. The defendants were charged with “criminal trespass” and “engaging in a riot” when they were arrested at an area identified as DAPL site 118 on Highway 6 on October 10th. 

In the affidavit offered by the prosecution, Ms. Bias was accused of “refusing to leave and locking arms in a teepee to delay arrest” and Ms. Blackowl was accused of being “in a tepee on DAPL site 118” and “refusing to leave.” The defendants filed Motions to Dismiss arguing that the facts alleged, even if true, did not provide the probable cause necessary to show a crime was committed or that the defendants committed it. 

In granting the defendants’ Motions, Judge Schmalenberger concurred: 

The complaint must show that probable cause exists to believe that the defendants committed the acts charged. The alleged facts must be sufficient to warrant a defendant committed it…The allegations in the affidavits do not meet this standard. The affidavits do not even contain the essential elements of the charged offense…THEREFORE, IT IS HEREBY ORDERED that the charges of inciting a riot and criminal trespass are dismissed without prejudice. 

Attorneys bringing the Motion were part of the Water Protector Legal Collective’s (WPLC) Pro Hac Vice program approved by the North Dakota Supreme Court. The program allows experienced out-of-state attorneys to appear in the #NoDAPL cases pro bono, without local counsel present. Melinda Power and her local counsel sponsor, Amanda Harris, originally filed the Motions to Dismiss. Ms. Power is a WPLC-affiliated pro hac vice attorney from Chicago, and Amanda Harris is an experienced local criminal defense attorney. 

While Judge Schmalenberger’s immediate ruling is limited to the two cases set for trial tomorrow and is based on the specific language of the affidavit, the rationale for dismissal could easily apply to many of the other hundreds of Water Protector cases where “criminal trespass” and “engaging in a riot” are charged and specific factual allegations are lacking.

Yesterday, on March 29, North Dakota Water Protectors had felony “reckless endangerment, “lockdown” charges dismissed. States Attorney Grossinger said he had a conflict on the day the felony reckless endangerment case was set for trial, and he was not prepared for trial on April 4th, despite having nearly six months to investigate, gather evidence, and find witnesses who could establish that any crime occurred. 

As of today, no Water Protectors have been found guilty of felony charges, none have been sentenced to spend time in jail, and over 30 Water Protectors have had misdemeanor charges dismissed for lack of evidence. We also want to acknowledge the Freshet Collective for providing bail, travel money, and ground support for defendants, as well as financial assistance to local attorneys who are representing Water Protectors. 

Oil may be flowing under Lake Oahe, but the arc of the moral universe still bends toward justice. Water protectors are winning the fight against the head of the “black snake” in the courts, and this Movement has inspired so many to continue this fight elsewhere. These are still sacred times.

#MniWiconi
#NoDAPL
#NotGuilty

 

Motion to Suppress the Evidence Granted

In the criminal case of People v. Monroe, Attorneys Melinda Power and Sara Garber won their Motion to Suppress the Evidence on behalf of Mr. Monroe on 8/25/2016. As a result, all evidence unlawfully seized by the police was quashed. Mr. Monroe faced two separate armed robbery charges which were dismissed. A happy Mr. Monroe and his sobbing mother left the courtroom a lot happier than when they entered it. 

People v. Robles

09/20/2013, Along with co-counsel, Mark Parts, Melinda Power won a jury trial before the Honorable Judge Porter. After deliberating for just one hour, the jury found the defendant not guilty of residential burglary. 

People v. Arzuaga

03/15/2013, Case dismissed against a defendant charged with unlawful use of a weapon. Challenging the officers' illegal stop and search, Attorney Melinda Power successfully argued a motion to suppress the defendant's arrest and to dismiss all charges.