An eager reader suggests that, given the headlines surrounding the grand jury non-indictments of police officers involved in the deaths of suspects in Ferguson and Staten Island, we could benefit from a better understanding of how grand juries work.

For expertise, I turn to Pennington County State's Attorney Mark Vargo and Rapid City attorney Patrick Duffy. Vargo has worked with grand juries as a state and federal prosecutor. He also served as a grand juror for six months. Defense attorneys are generally not directly involved in grand jury proceedings, but Duffy has counseled witnesses and defendants appearing before grand juries. Duffy regularly reviews grand jury transcripts of clients indicted by that process.

In South Dakota, the grand jury is a panel of six to ten citizens convened to determine whether the state should bring charges against a suspect. If you are registered to vote or licensed to drive and 18 or older, you could be a grand juror.

The grand jury differs from the petit jury (ah, French! "small" jury, the trial jury we are used to seeing in the news) in its standard for action. The grand jury, in Vargo's words, must "evaluate whether there is probable cause that an offense was committed and that the person to be charged is the one responsible." Vargo says police use the same standard in warrantless arrests: police arrest and grand juries indict when it is "more likely than not" that a suspect has committed a crime. To convict, petit juries must clear the much higher bar of guilt beyond a reasonable doubt.

Indictment is also requires fewer votes than conviction. A grand jury may indict on less than unanimity. Six or more jurors must vote to indict.

Unlike the petit jury, the grand jury is not an adversarial setting. No defense attorney or judge is present. Neither is the defendant. Witnesses face questions, but not the cross-examination by opposing attorneys. A good prosecutor, says Vargo, presents both the strengths and weaknesses of the case.

Conducted properly, the grand jury weeds out weak cases that would not stand up in court. The grand jury also checks the state's prosecutorial power. As Duffy says, the grand jury "protects us from baseless charges brought by law enforcement." It spares innocent individuals the stigma of being charged with a crime, as well as the financial cost and strain of a criminal trial.

The secrecy of the grand jury is a necessary part of that protection. However, Duffy says that secrecy is also a basic flaw in the now well-known grand jury investigations in Ferguson and Staten Island. "Whenever an agent of the state kills a citizen," Duffy contends, "the level of confidence society needs to have in any conclusion about guilt or innocence is obviously very high." Duffy says matters like these police killings should unfold publicly, before a petit jury, "because sometimes a public trial is the only way for society to have complete confidence in the result."

The rage around the Ferguson and Staten Island non-indictments revolves around the perception that the criminal justice system is rigged for cops and against blacks and other minorities. With respect to police, there may be little we can do with the grand jury system to address such perceptions. South Dakota grand juries follow no special procedures in cases involving law enforcement officials. Vargo says such special rules for any defendant would be inappropriate. The only likely difference in a grand jury's handling of a case involving a police officer would be the recusal of a prosecutor whose relationship with that police officer's department "could jeopardize the charging decision or the public's confidence therein." However, Vargo says the number of cases coming to grand juries with officers as potential defendants is "exceedingly low." Shootings by police officers are "frequently investigated by the Division of Criminal Investigation rather than a local agency."

Nor is it easy to build into the grand jury some sort of racial justice guarantee. The grand jury should reflect its community as accurately as a petit jury does. Duffy says properly reflecting the community will increase public confidence in grand jury decisions. But prosecutors don't get to pick grand jurors by color, income, or any other criterion. The randomly selected grand jury pool only reflects the folks who register to vote or get drivers licenses. In Pennington County, Duffy says getting juries that "look like" the community is complicated by the large population of American Indians who float between Rapid City, Pine Ridge, and Rosebud.

Besides, the public cannot take full confidence in the representativeness of any one grand jury, since the identities of grand jurors, like the proceedings, are secret.

Duffy says the best defense against courthouse prejudice is effective attorneys playing their part in an effective criminal justice system:

The public process of trial by jury, when conducted by competent counsel, is the ultimate safeguard of our rights. For the most part, the better the lawyers, prosecution and defense, who try the case, the better the quality of the justice that will emerge.

Great trials conducted by great trial lawyers before great judges produce great justice [Patrick Duffy, e-mail, 2014.12.08].

Vargo says a grand jury should respond to racial or ethnic prejudice only when it is an element or motive in a crime charged. Grand juries "should be (and, I think, generally are) focused on the proof against a defendant." If grand juries are indeed failing black and Indian victims of crime or shielding white police officers from proper prosecution, the solution does not lie in changing the grand jury system; the solution lies in creating better citizens who can better carry out their sole duty as grand jurors—in Vargo's words, "to make a finding as to probable cause."

Vargo sees two important lessons for all citizens in the discussion of the Ferguson and Staten Island cases:

Perhaps the most important lesson for all of us is in the difficult task of keeping an open mind. Once the narrative on each case came out, there seemed to be precious few people changing their minds. And yet the evidence available to the public grew (and changed) almost daily.

The other lesson (closely related) is to stay informed. Even among those who pay attention to the news, I would wager that less than 10% of people know what the name of the charge was, much less the elements, for the homicide count that the officers would have been facing. In fact, I just spent 20 minutes looking for a news report that listed the charges and could not find one unless you count the comments sections. If you don’t know that, how can you have an opinion about whether he should have been indicted? [Mark Vargo, e-mail, 2014.12.09]

The grand jury system, like the criminal justice system, is what we make it. It depends on well-educated, open-minded citizens committed to truth and the rule of law.


An eager reader reminds me that the Supreme Court has agreed to hear King v. Burwell, the selfish conservative effort to sabotage of the premium tax credits offered under the Affordable Care Act. (Recall that King v. Burwell was the case the federal government won in circuit court. Companion case Halbig v. Burwell, which selfish conservative jerks won, was vacated and will be heard by the full Fourth Circuit this week.) At stake is nothing less than exploding costs for policyholders and chaos in the health insurance market in the 36 states that have not set up their own health insurance exchanges:

If the IRS rule is invalidated — and absent effective contingency planning — a state that has declined to create its own exchange probably won't be able to stave off the immediate destabilization of its insurance market. The Court will probably release its opinion in late June; its decision will take effect 25 days later. At that point, if the challengers prevail, the U.S. Treasury will probably have to stop issuing tax credits to users of federal exchanges. Enrollees who are unable or unwilling to pay the full cost of their insurance premiums could see their coverage terminated, perhaps as soon as 30 days after they fail to make a payment. Those who retain insurance are likely to be sicker than those who drop coverage, which will skew the risk pools and expose insurers to large, unanticipated losses [Nicholas Bagley, David K. Jones, and Timothy Stoltzfus Jost, "Predicting the Fallout from King v. Burwell—Exchanges and the ACA," New England Journal of Medicine, 2014.12.10].

Republicans could nudge the Court closer to impaling the ACA on its own wording by crafting real replacement legislation to minimize the impact of overturning King v. Burwell. Republicans may slobber over the prospect of killing Obamacare, but they surely don't want to price millions of Americans out of their health insurance and hit their insurance company friends with heavy losses.

A good Supreme Court, however, will not let any political maneuvers push it closer to a naked political power play and a ridiculous ruling against the common good.


This will be an exciting day for the South Dakota Public Utilities Commission. (I can picture Commissioner Chris Nelson springing out of bed every morning and saying exactly that.) On Tuesday, December 9, amidst seven major agenda items, the PUC gets to talk Keystone XL. Tuesday's hearing isn't the whole box of Timbits. Far from it: tomorrow, Commissioners Nelson, and Fiegen will only set rules for discovery and maybe time frame for future hearings.

TransCanada, the hopeful builder of the second tar sands pipeline that would cross our fair state, moved on October 30 to severely limit the scope of discovery—i.e., the topics on which opponents of the pipeline could demand information that they could use next year to argue against recertifying TransCanada's permit. For the high school policy debaters in the audience, TransCanada is essentially arguing, "No New in Two!" TransCanada contends that state law forbids today's opponents from bringing up or even demanding documents relating to arguments against the West River pipeline that weren't brought up in the original PUC permit process in 2009 and 2010. TransCanada says intervenors may not raise the following issues:

...the effects of the Project on the soils of the Sandhills; the effects of the Project on the Ogallala Aquifer and other streams, river, and waterbodies; whether the Project is in the national interest; whether the Department of State conducted sufficient consultation with interested Tribes under Section 106 of the National Historic Preservation Act; whether Keystone is entitled to exercise the right of eminent domain; and whether development of the oil sands in Canada harms the environment and contributes to levels of C02 in the atmosphere ["Keystone's Motion to Define the Scope of Discovery under SDCL 49--41B-27," SDPUC Docket, HP14-001, 2014.10.30].

TransCanada is understandably trying to speed the process, take ground from its opponents, and keep documents out of opponents' hands.

Pretty much everyone else at the show says TransCanada is wrong. The Cheyenne River Sioux Tribe dismantles TransCanada's motion, saying the Canadians get South Dakota case law wrong, offers no statutory basis for its narrow interpretation of the relevant permitting clause, and improperly reads that key statute in isolation in an attempt to throttle the properly broad authority of the PUC. Dakota Rural Action cites examples from other states that hold that the state confers no property right with a construction permit and the state is has the authority to conduct a broad review of an expired permit. The Rosebud Sioux Tribe argues that TransCanada is seeking a protection order that improperly applies the standards for permissibility at trial to permissibility in discovery: basically, the fact that information may not be allowed in the final hearing does not justify excluding such information from discovery.

Merry Christmas, Keystone XL opponents: the PUC staff seems to agree with you!

...[W]hile SDCL § 49-41B-27 limits the proceedings, it does not limit the scope of discovery. The fact that information is not admissible in the certification proceeding does not mean that it is not discoverable. “The purpose of discovery is to examine information that may lead to admissible evidence at trial [Kristen Edwards, PUC Attorney, response to TransCanada motion on discovery, PUC Docket HP14-001, 2014.12.01].

PUC attorney Edwards is waving the caution flag at Keystone XL opponents. They will still have to make their arguments at the full hearing next year that the PUC should consider risks to the Ogallala aquifer, lack of consultation with tribes, eminent domain, and other objections that were not raised in the first Keystone XL permit hearing. But if the PUC accepts its own attorney's reading of state law, it will tomorrow allow opponents to engage in much broader discovery than TransCanada wants.

Much broader discovery will require a much broader time frame. TransCanada wants a 14-week discovery process before hearings March 24–27, 2015. Dakota Rural Action says proper discovery and response will take 44 weeks, which would put the hearing sometime next October. On this issue, PUC staff is lining up with TransCanada, proposing the same March dates for the evidentiary hearing.

This discussion could all become academic if the Yankton Sioux Tribe prevails in its motion to dismiss. Attorney Thomasina Red Bird says that when TransCanada petitioned for recertification, in included a "Tracking Table of Changes" indicating changes in thirty of the findings of fact from the original permit. Red Bird and her Yankton clients say those changes make the project proposed in the 2014 petition different from the project approved by the PUC in 2010. The PUC, says Red Bird, cannot recertify a new project that has not been certified. Throw it out, start over!

I like that argument. I don't think the PUC will. We can hope for good fortune, but for now, a victory on broad discovery and a schedule long enough to make discovery feasible will be plenty.

The PUC will webcast tomorrow's meeting live, starting at 9:30 a.m. Central. Keystone XL is the last major action item on the agenda, so it's hard to say when that excitement will begin.

P.S.: Blogger Pat Powers ignores the details of tomorrow's hearing and whines the Big Oil party line that South Dakota should change its reasonably limited permits to perpetual licenses. Funny: I don't hear him saying that homeowners should get a permanent building permit, or that I should get a perpetual teaching license, or that Grandma ought to get a perpetual driver's license....


Attorney General Marty Jackley could be interrogating, arresting, and suing Joop Bollen. He could be arresting Chad Haber for hiding his campaign finance reports for six weeks and counting.

Instead, AG Jackley is wasting his time on another anti-Obama court charade that will serve no interest beyond inflating Jackley's rep among the Republican base in 2018. AG Jackley yesterday announced that he has signed our state onto a lawsuit with 16 other states to challenge President Barack Obama's executive actions on immigration policy.

Jackley claims this suit is about the rule of law, even while lawbreaking EB-5 czar Joop Bollen walks free. Jackley claims this suit is about Presidential power, even though the President's directives are entirely Constitutional. Jackley claims this suit is about saving law enforcement, healthcare, and education resources, even though he is throwing away valuable South Dakota law enforcement resources on this lawsuit when he could be focusing on more pressing problems in South Dakota, even though his party's opposition to the Affordable Care Act has denied citizens of this state hundreds of millions of Medicaid dollars, and even though his Governor has just issued a visionless budget that continues decades of Republican neglect of education resources.

Jackley and his friends will also lose this suit, just as they lost most of the arguments Jackley endorsed in the anti-ACA lawsuit. The complaint itself claims that the President has "unilaterally suspend[ed] the immigration laws as applied to 4 million of the 11 million undocumented immigrants in the United States." But Congress has already effectively suspended those laws by not providing the Executive Branch sufficient resources to capture, prosecute, and deport all of the violators of those immigration laws. Throw out these executive actions, and the President will still be bound by Congress's constraints to inadequately enforce these laws. Absent the actions the President announced on November 20, we get worse outcomes, as we expend limited law enforcement resources more randomly and less efficiently instead of focusing efforts on the most dangerous criminals among illegal immigrants. The court cannot provide the litigants the relief their lawsuit seeks. The lawsuit should therefore be moot.

The complaint wastes valuable argumentation space quoting the President's public statements as if they were binding pronouncements on law. They are not. The complaint lists past Obama Administration immigration policies and alleges impacts therefrom as if they bear on the assessment of the Constitutionality of the President's actions. They do not.

Attorney General Jackley may as well be prosecuting local cops for not ticketing every speeder or staking out every bar on Friday night. Golly, that's a public official changing the law by not enforcing it in every instance, right? Where are the cries of tyranny there?

Attorney General Jackley will continue to use his office to waste the courts' time and our money. President Obama will continue to solve problems, with or without the cooperation of Republicans like Marty who care more about scoring partisan points than seeking real justice.


Just when the South Dakota School of Mines and Technology needs strong female leadership to get more women's bathrooms in the geology department, the feds come bothering Mines president Heather Wilson with more concerns about her consulting and lobbying activities prior to her work in South Dakota.

Mr. Kurtz noted press a couple weeks ago on Wilson's involvement in what a Department of Energy Inspector General's investigation determined was the illegal use of federal money to lobby for an extension of no-bid federal contracts at Sandia National Laboratories in Albuquerque, New Mexico. Wilson represented New Mexico's 1st District, including most of Albuquerque, in the U.S. House from 1998 to 2009.

The DOEIG report says Wilson's company, Heather Wilson LLC, consulted for Sandia. The report says SNL's consultants helped develop a plan "to influence members of Congress and Federal officials to prevent the need for a competitive process as a means to achieve the desired contract extension."

Wilson denies any involvement with illegal lobbying. She says the reports findings do not name her specifically. Technically, she's right:  the report itself mentions Wilson and "Heather Wilson LLC" (why do I feel a Joop Bollen moment coming on?) in the background paragraph, but her name does not appear in the findings section. However, the background paragraph uses this language:

Prompted by an Office of Inspector General inspection report on Concerns with Consulting Contract Administration at Various Department Sites (DOE/IG-0889, June 2013), the NNSA's Sandia Field Office conducted a preliminary review of documentation from 2009 through 2011 regarding consultant activities between Heather Wilson, LLC (the principal of which is a former member of the U.S. House of Representatives) and SNL. On March 27, 2013, the Sandia Field Office alleged that SNL impermissibly attempted to influence an extension to the Sandia Corporation contract and engaged Ms. Wilson in these activities [Gregory H. Friedman, Inspector General, "INFORMATION: Special Inquiry on 'Alleged Attempts by Sandia National Laboratories to Influence Congress and Federal Officials on a Contract Extension'," Memorandum to the Secretary, Department of Energy, 2014.11.07].

Wilson is the only consultant so named in the report, and this paragraph states clearly that Sandia engaged Wilson in impermissible activities. IG Friedman tells the press that Wilson was "deeply, deeply involved" in these impermissible activities. The Inspector General attaches to the report a response from National Nuclear Security Administration chief Frank Klotz, who says that Sandia repaid the NNSA $226K for fees paid to Wilson for previous questionable lobbying activities. Klotz assures the DOEIG that NNSA is reviewing Sandia's use of consulting fees in the current matter.

Board of Regents chairman Dean Krogman says that Wilson has the Regents' "full support," although he tells the Rapid City Journal he wasn't aware of the new DOEIG report.

You know, Chairman Krogman, you wouldn't have to make precarious statements like that if your university presidents weren't holding down second jobs in corporate America.


Having to dig deeper than I to find reason to be thankful this fine holiday is attorney Brandon Taliaferro, whose appeal for expungement was rejected by the South Dakota Supreme Court this week. In a ruling filed Tuesday, a unanimous court said that the wording of the law prevents them from doing Taliaferro the justice of erasing from his record his arrest for crimes of which he is completely innocent.

Recall that Taliaferro was trying to help foster children who had been sexually abused by Richard Mette, who went to the penitentiary for his crime. For what seems explicable only from a nasty political perspective, the state cooked up seven charges against Taliaferro revolving around the idea that he and social worker Shirley Schwab tried to coax the foster children into providing false testimony against Richard Mette and his wife Wendy. The state utterly failed to make its case. Judge Gene Paul Kean threw the case out at the close of the state's arguments, saying the state had failed to offer any evidence requiring a response from the defense. This year, Circuit Court Judge Gene Paul Kean expunged five of the seven charges for which Taliaferro was wrongly arrested.

But prosecutor Michael Moore dismissed one charge before the acquittal and another before it was brought to trial. When Taliaferro asked that those two baseless charges be expunged, Moore said no. The state had no problem expunging eleven felony child abuse charges from Wendy Mette's record, even though the state had triable evidence to support those charges. But Taliaferro had to appeal to the Supreme Court for similar relief.

The Supreme Court says it cannot provide that relief. Justice Lori Wilbur says the plain language of SDCL 23A-3-27 lets the prosecuting attorney do what Moore has done and what Attorney General Marty Jackley has supported: bring baseless charges against an innocent man, dismiss those charges before facing the withering scrutiny of court and an embarrassing acquittal, then chain the wrongly accused man with an arrest record that he has to explain to every future employer. Justice Wilbur acknowledges that the result is "unfavorable" and "harsh" but writes that Taliaferro's "appropriate avenue for relief in this case is through the Legislature."


The Legislature's Ag Land Assessment Task Force gets me to notice a tiny portion of our agricultural land assessment rules that show South Dakota thinking like Earl Butz, telling farmers to get big or get out... of agricultural land classification.

The evaluation of ag land is currently a contorted potential income tax, but the important part here is that ag land is taxed much less per acre than residential land. SDCL 10-6-31.1 says that land must meet two of these three criteria to be taxed at the lower agricultural rate (farmers, legislators, let me know if I'm boiling them down correctly):

  1. A third of the gross family income must come from agricultural activities on the land;
  2. The principal use of the land is agriculture;
  3. The land in question is at least 20 acres (although counties can increase that minimum up to 160 acres).

The interim committee is considering rewording that statute to make the principal-use criterion mandatory and requiring the land additionally meet either the one-third-income or minimum-size requirement.

I understand that some of the angst over ag land assessment comes from Pennington County, where evidently some Black Hills residents have kept taxes on their scenic parcels low by harvesting a little timber and calling themselves tree farmers.

But consider this situation: suppose the Governor gets serious about rural development in his second term and retools Dakota Roots to recruit young families to take up small-scale farming. We encourage young couples to buy small farms, less than ten acres, to grow real food for local sale and consumption. These young farm couples dig in for some local-level garden farming, but at least one member of the family maintains professional employment teaching, lawyering, doctoring, carpenting, what-have-you to ensure some income stability.

Under either version, current or amended, of our tax rules, those intrepid young small farmers get hit with an extra tax burden. It seems odd to tax farmers more just because they have chosen to work on a smaller scale. It seems contradictory for our income-tax-averse Republican Legislature to impose a higher tax rate on farmers based on their income.

Our property tax code should be able to distinguish between farmers engaged in real farming and Black Hills retirees tricking the county by chopping a few trees. But if we can't write a law to recognize that difference, we shouldn't punish small farmers who choose to sell their goods to their neighbors at the farmers' market instead of Smithfield, ADM, and Bel Brands.

We could avoid all this land-evaluation rigamarole if we just replaced our antiquated property tax with an income tax. Short of that, we could write a tax code that encourages young people to get into farming without feeling like they have to commit to the Big-Ag cycle of corporate serfdom and debt.

Related: The Legislature may be inching toward turning the agricultural land assessment into something even closer to an income tax. At their Tuesday meeting, the ag land assessment task force voted unanimously to commission SDSU economists to study the impacts of assessing ag land on actual use instead of ideal use. (Hey, isn't that Rep. Charlie Hoffman's good idea?)


Senator Phil Jensen (R-33/Rapid City) has found a nice safe conservative bunker from which to fire his first post-election paranoia grenades. Senator Jensen says the state Board of Education is breaking a new state law that he co-sponsored in the 2014 Legislative session to deliver us from the evil of K-12 curriculum standards created in other states.

The law in question is SDCL 13-3-48.1, created by this year's Senate Bill 64, which reads in relevant part,

Prior to July 1, 2016, the Board of Education may not, pursuant to § 13-3-48, adopt any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states. However, this section does not apply to content standards whose adoption by the Board of Education was completed and finalized prior to July 1, 2014. However, nothing in this section prohibits the board from adopting standards drafted by South Dakota educators and professionals which reference uniform content standards, provided that the board has conducted at least four public hearings in regard to those standards [SDCL 13-3-48.1, enacted 2014.07.01].

The action in question is the creation of new science and social studies standards. Senator Jensen, similarly archly conservative Rep. Elizabeth May (R-27/Kyle), and some Common Core opponents went to the Board of Education meeting Monday to say those new standards are linked to Common Core. According to the intrepid Bob Mercer, the standard opponents used words like “communist,” “evolution,” “leftist,” “climate change” and “environmentalism” in their expressions of opposition.

Never mind that the South Dakota teachers who worked on the social studies standards read SDCL 13-3-48.1, read a lot of documents, and drafted their own darn standards:

Much of the proposal is based on the state’s existing standards, but the revision committee injected old priorities with their own experience and new research, [DOE specialist Sam] Shaw said. The group also consulted the C3 Framework, a collaborative effort between states and the National Council for Social Studies to improve the rigor of social studies classes and align with the Common Core State Standards.

Lawmakers passed a two-year ban last year on the adoption of “any uniform content standards drafted by a multistate consortium which are intended for adoption in two or more states.”

Aware of the stipulation, the 2014 Social Studies Content Standards Revision Committee did not adopt the C3 Framework, instead using its philosophies to inform the standards-writing process, Shaw said.

“Anything we used was primarily for reference,” Shaw said. “Each and every individual standard was approved by the teachers” [Patrick Anderson, "Social Studies Standards Urge More Analysis," that Sioux Falls paper, 2014.11.17].

And ditto the science standards:

The proposed science standards are unique to South Dakota and give flexibility to teachers at the local level, Shaw said.

Shaw and his fellow committee members used the Next Generation Science Standards as a framework for creating standards, but the components were made to fit South Dakota's education needs, Shaw said [Patrick Anderson, "State Science Standard Proposals Draw Concern," that Sioux Falls paper, 2014.09.15].

Evidently when the Legislature forces teachers to engage in the charade of codifying all of their art into lengthy bullet-point standards documents, Senator Jensen and other conservative allies also expect teachers to ignore the vast body of knowledge, research, and paperwork already generated by their colleagues in other states and reinvent the standards wheel. (Senator Jensen is creating another moment in which South Dakota teachers will say to the Legislature, "You don't pay us enough to put up with this B.S.")

Senator Jensen said he's going to sic the Attorney General on the Board of Education for this violation, because oh my, an economic-development official scamming the state out of over $100 million on an illegal contract doesn't warrant lifting a finger, but teachers reading plans from other states need to be investigated right now!

Such is the nuttiness Senator Jensen and his fellow Republicans have in store for the 2015 Legislative session.


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