BISMARCK — Charges against a South Dakota man that are based on DNA found on a cigarette butt at a 2016 Dakota Access Pipeline protest site in North Dakota should be dismissed because it's impossible to determine where the butt originated or how long it might have been there, the man’s attorney argues in court documents.
Attorney Bruce Nestor of Minneapolis on Monday filed a motion in state court in Morton County seeking dismissal of the charges against Lawrence Malcolm Jr., of Sisseton, S.D., saying the affidavit used to bring the charges fails to establish that Malcolm is probably guilty of the offenses.
Authorities on Sept. 5 issued an arrest warrant for Malcolm on charges of conspiracy to commit criminal mischief and engaging in a riot. The charges were filed in connection with a Sept. 6, 2016, incident on County Road 135 that caused “hundreds of thousands of dollars” in damage to construction equipment, an affidavit says. More than 100 protesters, many with their faces covered, took part in the protest.
North Dakota Bureau of Criminal Investigation agents gathered evidence at the scene following the incident, including two cigarette butts that were sent to the State Crime Lab for analysis. BCI was notified in August that the DNA profile from one of them was a match for Malcolm, whose profile was on file from a previous arrest.
Nestor in a memorandum supporting his motion for dismissal says the affidavit filed by BCI doesn’t establish when the cigarette butt was left at the scene, that Malcolm was at the scene that day or that he participated in the riot.
ADVERTISEMENT
“The cigarette butt could have been tossed out of a moving car days before, been deposited by someone emptying any ashtray, or have been left by Mr. Malcolm at any time in a period of days or weeks preceding September 6, 2016,” the memorandum states.
Agents reviewed video and photographs from 2016, the BCI affidavit says. Malcolm is not seen in the videos, which authorities allege indicates he was one of those whose face was covered during the incident. Nestor says that's an "improbable deduction," as it would be impossible for law enforcement to prove in the absence of video or photographic images of each person at the site that day.
Even if the affidavit established that Malcolm was at the scene, Nestor said, it doesn’t establish that he participated in the riot.
Assistant Morton County State's Attorney Chase Lingle, who represents the state in the matter, could not be reached for comment Tuesday.
