On October 8, attorney Brandon Taliaferro will ask the South Dakota Supreme Court to expunge two criminal charges from his record. Attorney General Marty Jackley will peevishly argue that Taliaferro should continue to be punished for crimes he did not commit.

Permit me, as friend of the court and of justice, to explain:

In what Judge Gene Paul Kean himself called a shoddy and politically motivated prosecution, the State of South Dakota had charged Taliaferro with seven counts (witness tampering, subornation of perjury, unauthorized disclosure of confidential abuse and neglect information, obstructing law enforcement, and conspiracy to commit perjury) but utterly failed to make its case. In January 2013, Judge Kean acquitted Taliaferro without having to hear a single argument from the defense. In December 2013, Judge Kean expunged five of the charges from Taliaferro's record.

But what happened to the other two charges? The state's chosen prosecutor, Michael Moore from Beadle County, dismissed the obstruction charge before the Judge Kean acquitted. Moore dismissed the conspiracy charge, which was never brought to trial, right after the acquittal. When Taliaferro asked that the failed charges be expunged from his record, Moore got technical and refused to permit expungement of the charges he dismissed. Enter SDCL 23A-3-27:

Motion for expungement of arrest record. An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest:

  1. After one year from the date of any arrest if no accusatory instrument was filed;
  2. With the consent of the prosecuting attorney at any time after the prosecuting attorney formally dismisses the entire criminal case on the record; or
  3. At any time after an acquittal.

Clause 3 gets Taliaferro expungement on the charges where he won acquittal. But Clause 2 applies to the dismissed charges. By dismissing charges he knew he'd lose just like the other five, Moore at least assured himself the chance to stand in the way of any effort Taliaferro would make to remove those dismissed charges from his record. Judge Kean decided that, on those two dismissed charges, Clause 2 tied his hands.

In his appellant brief, Taliaferro says Moore shouldn't get to claim Clause 2 veto power. Moore did not dismiss the "entire criminal case"; he dismissed two charges that were "inextricably intertwined" with the five charges on which Taliaferro won acquittal. All seven charges rested on the same evidence, or more accurately, the same non-evidence. Taliaferro's brief quotes the prosecution's won witness, DCI Agent Mark Black, as saying the state had no evidence that Taliaferro influenced anyone to commit perjury.

With no evidence, no crime, and no conviction on the record, Taliaferro says it is unjust that he should have to lug around any charges or arrest on his record. He should be restored "to the status he occupied before his arrest or indictment," exactly as envisioned by the statute defining what expungement is for.

Attorney General Marty Jackley responds that the Court should just read the law and ignore "subjective notions of justice." In the state's appellee brief, AG Jackley says,

...the record of an arrest may in and of itself serve legitimate law enforcement purposes—such as deterring offenders from re-offending, assisting law enforcement's monitoring of certain offenders, or serving as evidence relevant to sentencing should an undeterred offender re-offend... [emphasis mine; Attorney General Marty Jackley, appellee's brief to South Dakota Supreme Court, Taliaferro v. South Dakota, 2014.06.11].

What offender is AG Jackley talking about? If I discard subjective notions of culpability and just read the law and the record, I find no offender to deter or monitor. The courts have not found Taliaferro guilty of any offense. The state has not provided evidence of any offense.

The Attorney General retorts that there was indeed evidence against Taliaferro but that the state simply chose not to present it. On this unpresented, unsworn, unscrutinized evidence, AG Jackley would do an end-run around his prosecutor's failure to convict Taliaferro and hang the punishment of unfounded charges around Taliaferro's neck. AG Jackley tacitly admits that the whole point of fighting expungement is to harm Taliaferro's professional status:

Nor should Taliaferro’s membership in a licensed profession make him more deserving of expungement than an ordinary DUI or domestic abuse offender. If anything, like a DUI arrestee who holds a CDL, the privilege of holding a special license arguably adds impetus to keeping a record of conduct that led to a licensee’s arrest [Jackley, 2014.06.11].

Even with these two charges on his record, Taliaferro retains his law license and can practice law in South Dakota. But if Taliaferro seeks to practice law in any other jurisdiction, he will have to explain why those arrests are on his record. That explanation will at least delay if not cast a cloud over his ability to practice his profession elsewhere. It can also complicate his application for other jobs or other commercial activities. And AG Jackley seems to think that an innocent man, a man against whom he had no case, ought to suffer that punishment.

Jackley's attitude toward Taliaferro shows a contempt for justice that should drive any voter to pick someone else for Attorney General... if only there were another qualified candidate for that job on the ballot.

Taliaferro did nothing wrong. Jackley's man Moore failed to present any evidence to the contrary. Moore should not now get to play legal tricks to exact a punishment that he could not win in an honest court battle and that an innocent man does not deserve.