Pipeline protester wins new trial over prosecutor misconduct

In a nonprecedential opinion, the Minnesota Court of Appeals has found that the felony obstruction conviction received by a woman protesting pipeline construction should be reversed.

Mylene Vialard was charged in 2021 with felony obstruction of legal process or arrest, as well as gross-misdemeanor trespass after she participated in a protest in Aitkin County over the installation of Line 3, a petroleum pipeline owned by Enbridge.

The Atikin County District Court dismissed the trespass charge for lack of probable cause, but found the obstruction charge was supported. At a five-day jury trial for that charge, Vialard and the state presented conflicting views of the incident in question.

According to the state, law enforcement responded to a disturbance in Aitkin County on an access road that led to the Line 3 pump station. One sergeant saw an “aerial blockade,” a 25-foot-tall structure composed of wire cables and bamboo poles, occupied by two people, one of whom was later identified as Vialard. Four other protesters were at the base of the bamboo structure and had locked themselves to it.

A second sergeant told all the protesters that they were under arrest. After the protesters on the ground were removed, law enforcement began the process of removing Vialard and the other protester from the bamboo structure. The two protesters attached their arms to opposite ends of a “sleeping dragon” device, which consists of a pipe that a protester can “lock” into by putting their arm into the pipe and clipping onto a pin inside the pipe with a carabiner.

After asking the two to detach themselves from the device, the sheriff and an officer tried to physically extract them by ascending in a bucket truck. After a time, the second protester unclipped himself from the device, allowing the officer to remove Vialard’s arm from the other end of it. Because the structure containing the two protesters was high off the ground and not stable, officers said they feared for the protesters’ safety.

Vialard testified in her own defense. According to her, her background in rock climbing and the performance of various stress tests on the bamboo structure indicated that she was not in any genuine danger when officers came to remove her from it.

She maintained that her plan was always to lock herself into the sleeping dragon as a “statement” against Enbridge, regardless of any law-enforcement activity, even though it “looked bad.”

A jury found Vialard guilty of felony obstruction of legal process or arrest. She was sentenced to one year of probation and appealed the conviction.

In appealing, Vialard argued that the evidence at trial was insufficient for a jury to find beyond a reasonable doubt that she obstructed her arrest in violation of section 609.50, subdivision 1(2). To gain a conviction under that statute, the state had to prove that Vialard “intentionally … obstruct[ed], resist[ed], or interfere[d] with a peace officer while the officer [was] engaged in the performance of official duties.” She also claimed 20 separate instances of prosecutorial misconduct in how the state prosecuted the case.

Among other factors, the court reviewed Vialard’s act of locking her arm into the sleeping dragon while police ascended in the bucket truck. The Court of Appeals narrowly interpreted the statutory language regarding “conduct directed at [a] [law-enforcement] officer that obstructs, resists, or interferes with the [law-enforcement] officer in the performance of official duties,” based on State v. Morin, a 2007 Court of Appeals case.

Accordingly, said the court, the state had to prove that Vialard’s use of the sleeping dragon was directed at a law-enforcement officer. In the end, the court disagreed that the evidence was insufficient for the jury to find appellant guilty of felony obstruction. But it did agree that Vialard is entitled to a new trial due to what it called “pervasive” prosecutorial misconduct.

Vialard alleged more than 20 instances of such misconduct, five of which were conceded by the state. In particular, the prosecution:

• Attempted to bolster one of the sergeants’ testimony by asking him about his lack of ethical violations.
• Asked the other sergeant about the injuries he sustained that were unrelated to Vialard.
• Suggested to the jury that Vialard would have pleaded guilty had the state’s video evidence been better.
• Aligned themselves with the jury by telling them that the sheriff was elected to protect “our community.”
• Invited the jury to “draw reasonable inferences off of what’s not in evidence.”

“The five instances of conceded misconduct in this case were part of the prosecutor’s apparent strategy of bolstering the state’s law-enforcement witnesses while appealing to the jury’s potential biases against Vialard,” wrote Judge Jeanne M. Cochran in the opinion, which was filed Aug. 18. “Each successive act of misconduct during questioning and closing arguments magnified the previous misconduct.”

Claire Glenn of the Climate Defense Project, who defended Vialard along with Karmen McQuitty of the People’s Law Center, said her client was gratified that the appellate court based its reversal on the instances of prosecutorial misconduct.

“It was surprising that the district court didn’t do more to address that,” Glenn said. “It’s rare that misconduct by prosecutors leads to them being held accountable, but we thought it was really egregious.”

“Let’s not forget that we were fighting the heavy polluter that is Enbridge, and that fight continues,” said Vialard in a statement. “The disregard for the territories and rights of the Anishinaabe people and the paid-for-by-Enbridge police violence against them and their allies is an issue that has yet to be addressed by the justice system.”

The district court’s decision was reversed and remanded.