By Ryan Fatica
A North Dakota activist was released yesterday after nearly 3 weeks in jail for refusing to testify before a federal grand jury. Steve Martinez, an Indigenous and Chicano activist who participated in the protests against the Dakota Access Pipeline (DAPL) on the Standing Rock reservation in North Dakota in 2016, was held in the Burleigh County Detention Center in Bismark, North Dakota on charges of contempt of court for his refusal.
In ordering him to be incarcerated, US Magistrate Judge Alice Senechal hoped to compel Martinez to testify before the federal grand jury about an incident that occurred in 2016, amidst the historic resistance to the DAPL pipeline project that brought thousands of Indigenous, environmentalist and other activists to the wintry fields of southern North Dakota.
In the face of this pressure, Steve invoked the Fifth Amendment in an effort to avoid participation. The Fifth Amendment protects individuals from being forced to testify against themselves in court. In a common procedure intended to coerce testimony, Judge Senechal then granted Martinez immunity, meaning that he can no longer be charged with crimes associated with his testimony. In so doing, Judge Senechal created the conditions by which Martinez could be forced to testify or jailed if he refused to do so.
According to Moira Meltzer-Cohen, his attorney, Martinez “believes that this subpoena is a subterfuge, intended to refocus attention on the lawful activities of water protectors, and that it will sooner or later become clear that his compliance with the grand jury is not validly required by law.”
Martinez’s partner, Leta Killer, explained that as Indigenous people, they have long learned not to trust or speak to the FBI. “Feds can twist words into what they want, as my family learned from the second Wounded Knee,” Killer said in a post on Facebook.
Martinez was released on procedural grounds after his attorneys argued that Magistrate Judge Senechal did not have the authority to incarcerate him.
“There’s two kinds of federal judges,” explained Lauren Regan, Executive Director of the Civil Liberties Defense Center (CLDC) based in Oregon, “an Article III Judge, and a Magistrate Judge. And certain types of court procedures can only be conducted by an Article III Judge, trials are the most common example, unless the parties consent to letting a Magistrate Judge conduct a trial.”
“Steve only had a Magistrate Judge and the Magistrate Judge basically rushed through a contempt proceeding,” Regan explained.
“This ruling terminates, but does not remedy, three weeks of categorically unlawful incarceration endured by Mr. Martinez. That the Government’s response was to re-subpoena him speaks to the perversity of this process,” said Meltzer-Cohen in a statement.
This is not the first time Martinez has refused to give information about his fellow activists to a federal grand jury. In December, 2017, Martinez was summoned to a grand jury in Bismark convened to investigate the same issue, which the federal prosecutors say involves a young Standing Rock protester, Sophia Wilansky, who was seriously injured during a confrontation with the police.
“I will in no way condone or cooperate with this attempt to repress the movement here at Standing Rock,” Martinez said in a statement at the time. Following his refusal to cooperate, the US Attorney’s Office decided to release Martinez from the subpoena, but three years later, he was subpoenaed again without explanation.
Martinez’s lawyers have argued that the timing of this new subpoena is related to a lawsuit Wilansky filed against the law enforcement agents she claims injured her.
Wilansky, who was just 21-years-old at the time, nearly lost her arm on the night of November 20, 2016 during a protest on the Backwater Bridge a mile north of the Oceti Sakowin prayer camp at Standing Rock. In a federal civil complaint filed in the US District of North Dakota, Wilansky claims she was struck by a concussion grenade thrown or shot by law enforcement officers called from around the region to repress the uprising against the pipeline project.
Law enforcement agencies responded to Wilansky’s claims with allegations that she was injured not by police munitions but by an improvised explosive device (IED) fashioned by protesters out of a propane cylinder.
But Wilansky’s injuries are not consistent with the explosion of a propane cylinder, says Regan, who has long defended those facing criminal charges as a result of their activism, is one of Wilansky’s lawyers in her ongoing lawsuit against various law enforcement bodies she says are responsible for her injuries.
“Sophia’s injuries are in no way consistent with something that would have had flames or heat,” said Regan. “Her medical records and the other evidence, basically demonstrates that if a propane canister had exploded, she’d probably be dead right now, but she would also have burns. A propane canister would have heat and flame involved in it.” But there were no burns on Wilansky’s body or clothes, Regan says.
Instead, according to Regan, Wilansky’s injuries are perfectly consistent with an impact from a munition used by law enforcement which “basically shattered” her arm, with some pieces going through her arm and coming out the other side.
According to Regan, this is when Steve Martinez enters the story. Martinez was near a vehicle on the bridge when a group of protestors came running toward the truck carrying Wilansky–bloody and in urgent need of medical attention. Martinez hopped in the vehicle and drove Wilansky to the nearby Casino where an ambulance was waiting to transport her to the hospital.
“As a result of being a good Samaritan, he has now been facing two federal grand jury subpoenas,” said Regan.
In an October 29, 2020 ruling in Wilansky’s civil suit, Federal Judge Daniel Traynor ruled that the case would proceed.
“The only thing that has changed between the first time he was subpoenaed, and now the second time, is that Sophia’s civil lawsuit against them has been given the green light to move forward,” said Regan.
Martinez’s attorneys have argued in court that “the near simultaneous timing of the civil order and the new grand jury subpoena casts doubt on the legitimacy of the subpoena,” the Water Protectors Legal Collective said in a statement.
“This grand jury certainly appears to have been convened for the primary purpose of manufacturing an ‘ongoing criminal investigation’ such as would justify the Government’s refusal to hand over definitive evidence in a related civil proceeding,” said Meltzer-Cohen in a statement.
Although Martinez is now out of jail, it is unclear how long he will remain free. The US Attorney has subpoenaed Steve to appear before the grand jury again on March 3. At that point, the judge may decide to again hold him in civil contempt of court and jail him if he continues to refuse to testify.
If sent back to jail, Martinez could be held for the length of the grand jury, which is 18 months. “There are still about 16 months left to go in this grand jury term, meaning that he could serve 16 or 17 months in jail for doing nothing illegal–for doing nothing wrong,” said Regan. “He could sit in a prison cell for doing nothing other than refusing to participate in this illegitimate witch hunt of a federal grand jury.”
Ryan Fatica is a member of the Perilous Editorial Collective and a founding member of Perilous Chronicle. He is based in Arizona.