Defense lawyers say the Pennington County State's Attorney engaged in prosecutorial misconduct when he wrote a letter with negative comments about Nick Tilsen that was sent to local law enforcement, who might be witnesses in the trial.
The attorneys — who made their arguments at a motions hearing on Wednesday — also say State's Attorney Mark Vargo retaliated against Tilsen after Tilsen spoke to the media and Vargo received criticism from the Pennington County Sheriff and Rapid City Police Chief.
The defense lawyers want a judge to dismiss the criminal charges, which relate to Tilsen's actions at a protest that used civil disobedience.
Vargo testified that his letter is not harmful because his comments were about the diversion agreement and Tilsen's statements to the media, not his alleged criminal behavior. He said he made his own decisions about the case, that he wasn't influenced by media coverage or law enforcement.
Colleen Moran, who works for the Minnehaha County State's Attorney Office, served as prosecutor during the motions hearing after Vargo and his office recused themselves since Vargo was a witness.
"The defense cannot establish that the letter will cause such witnesses to testify in an unlawful manner. It is certainly a stretch to speculate that law enforcement witnesses would violate an oath to testify truthfully," Moran wrote in a court document.
Tilsen is the leader of NDN Collective, a Rapid City-based nonprofit that focuses on Indigenous issues. He and others used their bodies and disabled vehicles to shut down the road to Mount Rushmore where former President Donald Trump was speaking last July 3.
The National Guard used force to move the group off the road and Tilsen and 19 others were arrested. Tilsen is facing more than 16 years in prison after being charged with seven crimes. Some of them relate to Tilsen allegedly assaulting a National Guard soldier by making her fearful after he took her shield.
“This was a politically and racially motivated prosecution to begin with because they don’t like the power that we’re building and the Land Back movement and they don’t like the power that we’re building among Indigenous people. So they’ve clearly targeted me," Tilsen said before the hearing.
Vargo and Moran declined to comment, citing the ongoing trial.
Diversion program
Vargo offered Tilsen to resolve the case through a diversion program, where he would admit to simple assault. All charges would be dropped if he completed the program.
Tilsen did go through the diversion intake program where he had a positive discussion about what kind of community service he would like to do, program officials testified Wednesday. They also said they discussed possible apology letters.
After intake meetings, the officials said, they send a suggested diversion plan to the state's attorney office, and Vargo must approve the plan. Someone formerly enters the program once they sign a diversion agreement and factual basis statement about their crime.
Tilsen never got to that point, the officials and Vargo testified.
Soon after the March 22 intake meeting, NDN Collective released a statement saying all charges would be dropped. The statement did not mention this would be contingent on Tilsen completing the diversion program.
Tilsen and his attorney Brendan Johnson also spoke with the media, where they did explain the deal. KOTA summarized Tilsen saying the protest wasn't criminal, and Vargo responded by saying ”Obviously, his comments afterward largely suggest that he is not accepting criminal responsibility."
Tilsen made a "very public set of false statements," Vargo testified Wednesday. Johnson contested whether the statements were false.
Communication with law enforcement
Pennington County Sheriff Kevin Thom texted Vargo that he was upset about the diversion offer and Tilsen's statements to the media, court records show. The messages aren't dated but defense lawyers say they were sent on March 22 or 23.
Thom — who accused Tilsen of breaking a protest agreement and was part of the law enforcement team that asked for the Guard — asked if Vargo would make Tilsen apologize. He also asked whether he would say anything in response to Tilsen telling the media that the charges were racially motivated.
Rapid City Police Chief Don Hedrick emailed his staff — some of whom responded to the protest — on March 23 to say he knows they are upset about the diversion offer, court records show. Later that day, Hedrick emailed Vargo to say the diversion offer and media coverage were hurting officer morale. He asked Vargo to explain why he made the offer.
Vargo sent the defense lawyers an email on March 24 saying Tilsen's media statements show he isn’t following the rules and spirit of diversion, court records show. He said Tilsen needs to make video apologies to the officer he agreed to admit to assaulting but also to another officer he's accused of assaulting via intimidation. Vargo said Tilsen needs to write a letter apologizing to the sheriff and another open letter to all law enforcement
Vargo also began drafting an open letter to law enforcement on March 24, court records say.
He wrote that he knows some officers are upset about the diversion offer and that Tilsen won't be participating after he showed he's "not interested in acknowledging his responsibly and is even less interested in healing the divides that exist in our community."
"You know how every coach ever thinks that they can solve the 'problem player' ... until they can't? I was that guy and for that I take every bit of the blame," Vargo wrote.
Johnson responded to Vargo's March 24 email on March 25, court records show.
Vargo sent the open letter to Thom and Hedrick on March 25 and asked them to share it with law enforcement, court records show.
"It does not include as much detail as I might otherwise because I assume that it will someday reach both the media and the courts," Vargo wrote.
Legal arguments
Tilsen's attorneys say Vargo's communication with law enforcement and diversion demands is proof that he retaliated against Tilsen for speaking to the media. They say the open letter is prejudicial since Thom and other law enforcement officers would likely testify during the trial, and Vargo made comments that speak to Tilsen's credibility.
The defense lawyers say Vargo violated Tilsen's Brady Rights — which say prosecutors must share favorable evidence with the defense — by not sending his open letter to them until they requested it. They also say it appears Vargo and Thom deleted the email with the open letter but they were able to get it from Hedrick.
Vargo testified that some law enforcement — including the two listed as victims in the case — were OK with the diversion offer. Either way, he said, he's not influenced by feedback from law enforcement, he makes his own decision.
He said he agreed with Johnson that most of his diversion demands were had not been previously discussed — but there's nothing wrong with that since the diversion agreement wasn't final. Vargo testified that he didn't expect Tilsen to agree with his demands "based on what your client had just said on the press."
Vargo said he made the demands due to Tilsen's "continued pattern of behavior" where he breaks agreements he makes with people who negotiated in good faith and then misrepresents the facts to the media. He said Thom agreed to let people protest on a highway lane but Tilsen kept asking for more lanes and time.
Vargo agreed the open letter could reach potential witnesses but said it won't impact the trial since he didn't comment on Tilsen's actions during the protest.
"I truly viewed them as entirely unrelated," he said of his statements in the letter.
Judge Craig Pfeifle, who oversaw the hearing, said he will file a written decision on whether to dismiss Tilsen's charges.
