Bismarck, ND — Water Protector Steve Martinez last week filed objections to proceedings that led to his being jailed on February 3, 2021, arguing that the Magistrate Judge lacked jurisdiction and authority to preside over grand jury matters, and made multiple significant errors of law in attempting to do so. These errors include denying Mr. Martinez the opportunity to present evidence that casts serious doubt on the legitimacy of the grand jury. “This subpoena is a transparent attempt by the Government to conceal law enforcement’s responsibility for the devastating injuries to Water Protector Sophia Wilansky, which it claims are the object of its investigation,” said Moira Meltzer-Cohen, counsel for Mr. Martinez.
In a motion to the court in late January, Mr. Martinez disputed the validity of the subpoena demanding his testimony regarding the injury to then-20 year old Sophia Wilansky at the Oceti Sakowin prayer camp, which gathered in 2016 to oppose the Dakota Access Pipeline (“DAPL”). The subpoena, he argued, violated his First and Fifth Amendment rights. A Magistrate Judge denied his motion to quash the subpoena. On February 3, after stripping Mr. Martinez of his Fifth Amendment rights and ordering him to testify, she found him in contempt of court for his continued refusal to answer questions before the grand jury, and imposed “coercive sanctions.” Mr. Martinez was immediately remanded to the custody of U.S. Marshals with the admonition that he would be released from jail were he to agree to testify.
But attorneys for Martinez contend that the determinations of the Magistrate Judge are invalid by several measures, and must be reversed. Entirely new proceedings must be properly conducted under the supervision of a District Court Judge, say Martinez’ lawyers, who argue that in addition to the fact that the Magistrate Judge lacked any jurisdiction to rule in the matter, Mr. Martinez was improperly denied the opportunity to respond to the Government’s claims and present evidence in open court. This evidence, they say, includes critical evidence regarding the subpoena’s impropriety.
In 2017, after Mr. Martinez challenged an essentially identical subpoena that had been served upon him, the U.S. Attorney voluntarily withdrew the demand for his testimony. Four years later, Martinez was called to testify once again, in what appears to have been a hastily reconvened criminal investigation into Ms. Wilansky’s injuries. Ms. Wilansky nearly lost her arm on November 20, 2016, and was left permanently injured, when heavily militarized police attacked unarmed people opposing DAPL’s construction on environmentally sensitive and sacred land. (This January, a federal appeals court validated many of the Water Protectors’ concerns, affirming that the permit allowing DAPL an easement was in fact illegal.) Medical evidence suggests that Ms. Wilansky was hit by a law enforcement explosive.
Ms. Wilansky filed suit against Morton County, ND, alleging that excessive force by police caused her injuries. Morton County has suggested that Water Protectors, and even Ms. Wilansky herself, are to blame. Shrapnel removed from Ms. Wilansky’s arm by surgeons likely suggests otherwise. But this shrapnel, the primary physical evidence in the case, was seized by the FBI immediately after Ms. Wilansky’s surgery in 2016. In the intervening four years, the FBI has refused to return it, or to disclose the results of any testing. On November 6, 2020, a District Judge authorized the parties in Ms. Wilansky’s suit to subpoena that evidence. Four days later, after years of silence, the U.S. Attorney in Bismarck subpoenaed Mr. Martinez to a grand jury purporting to be investigating Ms. Wilansky’s injuries.
Martinez’ supporters say that this grand jury investigation, convened four years after the fact, is a red herring. “The existence of a criminal investigation would certainly enable the FBI to conveniently justify their ongoing refusal to hand over the evidence – and may well function to protect Morton County from the public disclosure of definitive evidence that Ms. Wilansky’s injury was in fact caused by law enforcement,” said Wilansky’s attorney, Lauren Regan.
The statute under which Mr. Martinez is confined permits only so-called “coercive” as opposed to punitive confinement. “It is pure fiction to say that Steve’s confinement is anything but punitive,” says Ms. Meltzer-Cohen. “Until his legitimate objections to this subpoena are fully heard, in an uninhibited and open adversarial proceeding, and by the appropriate judicial authority, these sanctions exceed the permissible scope of the law, and must be terminated.” Martinez, who suffers from a number of health problems that make him particularly vulnerable to COVID-19, is currently held in Burleigh Morton Detention Center. North Dakota District Court Judge Daniel M. Traynor is expected to respond to Mr. Martinez’ filings within the week. In the meantime, supporters of Mr. Martinez remain steadfast in their conviction that this grand jury is a ploy to displace blame for Ms. Wilansky’s injuries onto innocent Water Protectors. Said Mr. Martinez’ partner, Leta Killer, “Steve is speaking out through silence.”
Mni Wiconi! (Water is Life!)
Steve Martinez is represented by Attorneys Ralph Hurvitz and Moira Meltzer-Cohen.
Letters of support may be directed to:
Burleigh County Detention Center,
PO Box 2499
Bismarck, ND 58502
Questions regarding support should be directed to SupportSteveMartinez@protonmail.com