A judge in the case of a South Dakota man accused of being part of a 2016 Dakota Access Pipeline riot based on DNA evidence found on a cigarette butt has asked the attorneys for written arguments, saying it appears the state is trying to show probable cause through photos that allegedly depict the man being around people vandalizing equipment.
“I’m not overly certain that’s the case,” South Central District Judge Bruce Romanick said.
Lawrence Malcolm Jr., 23, of Sisseton, S.D., is charged with felony conspiring to commit criminal mischief and misdemeanor engaging in a riot. Investigators allege his DNA on a cigarette butt links him to the scene of a 2016 DAPL construction site where rioters caused hundreds of thousands of dollars in damage to equipment. His DNA was on file from a previous arrest.
Two of the photos presented at a Tuesday preliminary hearing show Malcolm at the site and, in one photo, on top of a truck, said Morton County Sheriff’s Deputy Dion Bitz, who added he had contact with Malcolm “several days in a row” during January 2017.
The cigarette butt was found near that truck, said Craig Zachmeier, special agent with the North Dakota Bureau of Criminal Investigation. DNA profiles were recovered from about 10 pieces of evidence gathered that day, he said, but none of the others had identities attached to them.
Zachmeier, under questioning from Malcolm’s attorney, Bruce Nestor of Minneapolis, said he was unsure when the cigarette butt was deposited at the scene, or if it was placed there before or after the vandalism occurred.
The person Bitz identified as Malcolm was one of those in a line that was “creating a barrier from us doing our job,” Morton County Sheriff's Lt. Tom Sharp said. Sharp said he attempted to move past the line to video “a couple hundred people” spray painting and damaging construction equipment. The people in the line confronted him but didn’t physically stop him from advancing. Law enforcement stayed back because they “didn’t want to risk being overwhelmed,” Sharp said.
Romanick didn't rule Tuesday on whether to move the case forward, instead setting a Jan. 2 deadline for Nestor and Assistant Morton County State's Attorney Chase Lingle to file briefs.
Malcolm was not at the hearing. Nestor earlier had made and been granted a request for a waiver, saying an appearance would cause a financial hardship for his client. Malcolm missed a preliminary hearing scheduled for Nov. 21 because he had car problems and couldn’t make other transportation arrangements. South Central District Judge Gail Hagerty denied Nestor’s request to proceed with the hearing at that time.
Nestor argued in a September motion for dismissal that it’s impossible to determine where the cigarette butt originated or how long it might have been there. Prosecutors said in response that Malcolm is observed at the riot scene in photos and video, and a preliminary hearing is “the more appropriate time for addressing probable cause.”
Two other DAPL-related cases against Malcolm were settled in November. He pleaded guilty to a misdemeanor charge of physical obstruction of a government function in a 2017 case. Nine misdemeanor charges and a felony simple assault charge were dismissed. Two felony charges and one misdemeanor were dismissed in a 2016 case in which Malcolm pleaded guilty to misdemeanor trespassing. The plea agreement covering both cases stipulated 30 days of jail time with enough credit for time served to cover the sentence.
Reach Travis Svihovec at 701-250-8260 or Travis.Svihovec@bismarcktribune.com
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