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ND Supreme Court splits 3-2 on first pipeline protest conviction appeal

BISMARCK—Kevin Decker's probation ended one month before the North Dakota Supreme Court upheld his trial and misdemeanor conviction related to a Dakota Access Pipeline protest.

One of the first defendants arrested and charged from the monthslong demonstrations, Decker was convicted at trial a year ago of disorderly conduct. He appealed, alleging insufficient evidence and a "closed" courtroom as one man was denied entry during jury selection. Justices heard arguments in November and issued differing opinions on Thursday.

The high court's ruling comes one month after Decker's unsupervised probation ended as part of his deferred imposition of sentence — meaning if he fulfilled his probation with no criminal violations and paid his fees, the conviction will be taken off his record after a review to be completed in late March.

In the majority affirmative opinion, Justice Daniel Crothers wrote that excluding one member of the public from trial was "too trivial" to violate the Sixth Amendment right to a public trial, while evidence was sufficient to convict Decker.

"Any potential inconsistency or impairment of the right to a public trial was mitigated by the presence of press and public during jury selection," Crothers wrote. "Yelling at an officer, refusing multiple officer requests and scuffling with officers each have been found independently sufficient for disorderly conduct convictions."

Justice Lisa Fair McEvers and Chief Justice Gerald VandeWalle agreed with Crothers.

In the dissenting opinion with Justice Jon Jensen, Justice Jerod Tufte wrote that he would have ordered a new trial based on the courtroom closure.

"I would conclude that Decker established a violation of his right to a public trial because every member of the public was barred entry to the courtroom throughout jury selection," Tufte wrote.

When reached Monday for comment, appellant attorney Kiara Kraus-Parr said: "I think the dissent made a fairly cogent argument."

She also said Decker may appeal to the U.S. Supreme Court due to the issue of constitutional law, but added he may have issues with mootness if the conviction is taken off his record.

"There's not really anything to appeal at that point," she said.

Decker, 46, was the first DAPL protester to appeal to the North Dakota Supreme Court. He was tried with eight others in the second trial related to the protests and found guilty of pushing an officer.

Two other appellants, Mary Redway and Alex Simon, appealed last fall after Surrogate Judge Thomas Merrick sentenced them to jail time — the first such dispositions for any DAPL protesters.

About 300 state-level criminal cases remain open or inactive with warrants for arrest in connection to the protests from August 2016 to February 2017 in southern Morton County.