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.

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Perhaps it was destined to happen: I can finally link Joop Bollen and Chad Haber.

Both men think they can practice law on behalf of the state of South Dakota without a law license.

Fake Attorney General candidate Haber will never get the chance to test his belief. He'll skip the country with the remains of his Base Connect money before he wins any public office.

But Joop—oh, Joop!—has already tried it, with awful results.

Kathy Tyler and I have discussed Darley International's ongoing litigation against South Dakota. Back in October, 2007, California-based Darley signed a contract with the Hanul Law Firm of California and Korea to help recruit Chinese investors for EB-5 visa investment projects in South Dakota. Hanul was working with the South Dakota International Business Institute, which Joop Bollen, a South Dakota Board of Regents employee, directed for the purpose of promoting economic development in South Dakota. Within three months, Hanul and Darley stopped playing nicely. Bollen wrote Darley boss Robert D. Stratmore a hilarious buzz-off letter and formed his own private corporation, SDRC Inc., to do Darley's job and claim Darley's fees.

Darley sued in federal court in California to force SDIBI to enter arbitration. On August 22, 2008, Joop Bollen, figuring he had a grip on the situation and not wanting to trouble his superiors, submitted his own response to the court.

Read that again. Somebody files a suit against a state agency. Somebody wants to hold that agency, and hence, the people of South Dakota, liable for some alleged naughtiness. The guy running the state agency incurring this legal wrath doesn't say, "Holy crap! I'd better call the state's lawyers and tell them what's up!" The guy at the state agency, who is not a lawyer, decides to take it upon himself to write a legal brief to keep the state out of hot water... and doesn't tell anyone else in the agency about it.

This goes poorly. The California court takes Darley's word over Bollen's and on October 7, 2008, orders SDIBI (the state... us) to submit to arbitration.

The state, of course, finds out. (I tell all of my kids, all the time: if you rationalize doing something under the assumption that nobody will find out, don't do it! Someone will find out!)

In January, 2009, Bollen calls Northern State University attorney John Meyer and asks an innocent question about arbitration. Meyer asks for documents. Bollen sends a few. Meyer hears alarm bells. Meyer asks Bollen for more information. Bollen tries to pawn the matter off on Hanul, but Meyer's like, No, Joop, send me everything you have, now! Bollen sheepishly complies, and Meyer realizes, Holy crap! We've been sued!

Meyer tells Board of Regents attorney James Shekelton, Shekelton tells BOR exec Tad Perry, and pretty soon Pierre's on fire. The Regents retain counsel (real counsel, Joop, bar-certified counsel). They get Bollen to file a declaration saying Never mind me, I'm not a lawyer. Meyer, Shekelton, Perry, Attorney General Larry Long, and even Joop's secretary Cherri Brick (I kid you not, and oh my stars, I can't wait for the casting call for that role!) all file declarations supporting the Board of Regents motion to vacate and hefty supporting argument asking the court for mercy. We didn't know our flunky was practicing law without a license and exposing the Board of Regents and State of South Dakota to this legal liability! Cut us some slack!

The federal court did cut us that slack, though Darley then dragged us into new litigation that continues today. And now that Bollen no longer works for the state, he's been working hard to shield his private company SDRC Inc. from any liability in the Darley case and leave the state holding the bag.

But again, the remarkable point here is that the state continued to cut Bollen any slack. In 2008 he practiced law without a license, represented South Dakota in court without authorization from the Attorney General, and exposed the state to serious legal liability that our real lawyers had to run in to clean up. Yet the state kept him on the job through 2009. The state sent him on fancy trips overseas to recruit more EB-5 investors. The state gave him a lucrative no-bid contract to continue his same EB-5 work as a fully private citizen.

With a Haberian enthusiasm, Joop Bollen broke rules left and right. People in Pierre knew he was breaking these rules. And people in Pierre (I'm looking at you, Mike Rounds) kept doing him favors and keep doing him favors.

It boggles my mind that Bollen keeps getting these favors. It should boggle every voter's mind that Bollen-favor-doer-#1 is now asking for our trust on the November ballot.

Joop Bollen Likes Mike Rounds

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Hey, you know that contract Mike Rounds let Joop Bollen sign with himself? No big deal—it's just a misdemeanor:

Officer's interest in public contract as misdemeanor. No public officer who is authorized to sell or lease any property, or make any contract in the officer's official capacity may become voluntarily interested individually in any sale, lease, or contract, directly or indirectly with such entity. A violation of this section is a Class 2 misdemeanor unless the act is exempted by law [South Dakota Codified Law 3-16-7].

Bollen's immediate superiors, Northern State University president James Smith and then-Board of Regents director Tad Perry, say they had no idea Bollen owned (Bollen was) the company to which he outsourced the functions of his state office. But the Rounds Administration knew of Bollen's ownership full well when it approved Bollen's privatization of the state's EB-5 visa investment program.

Try out your smell tester: suppose your local mayor bought a garbage truck and signed a contract giving his new garbage company the city's trash business. Suppose your school business manager formed a painting business and hired herself to paint the high school cafeteria. Suppose Mike Rounds had signed a contract with his own insurance company putting state employees' life insurance under his personal management. There'd be more than a partisan uproar. The press and everyone else would freak out. Employees of the state lottery get fired for doing such a thing. Public employees just don't use their public power to place money in their private pockets.

But that's what Joop Bollen did. Even if it's just a misdemeanor, Bollen broke state conflict-of-interest law, just as he broke Board of Regents policies and may have broken state banking laws. Bollen operated South Dakota's EB-5 program with obvious disregard for lots of rules...

...and Mike Rounds kept rewarding him with contracts and opportunities for cash. Mike Rounds keeps rewarding him with political cover. Why?

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Failed U.S. Senate candidate Annette Bosworth has hired her fourth attorney in three months. Christopher Robert Jansen wasn't available, so Robert Van Norman will take over Bosworth's defense against twelve felony charges of false filing and perjury.

Predictably, Van Norman tells the press that Bosworth's case is "very complex from a defense standpoint" (no, it's not: she lied under a sworn oath), meaning he needs "additional time to review records, locate various witnesses, and investigate the charges and legal issues in order to properly represent her" (no, you don't: just read this blog, and you'll understand the perils of representing this incorrigible con artist and that your client's only hope is to plead guilty and beg for mercy).

Van Norman also has a daughter getting married and guests from Europe staying over this month, so the Hughes County court has delayed Bosworth's motions hearings to November and December and her trial to February 4–6. That delay has thus doubled the chance that Bosworth's husband Chad Haber could save her from a felony conviction from one over infinity to two over infinity. Haber is a fake candidate for attorney general. If he (chuckle) beats Marty Jackley (snort!) in November, Haber would take office (ha ha ha!) in January and could tell his lawyers to ignore the law and drop the case.

O.K., back to reality. If she and Chad don't finally close the clinic and flee the country with their leftover campaign cash, Bosworth goes to trial February 4, and a jury will convict on February 6.

Related Reading: While awaiting conviction, Chad and Annette are pulling more scams. A Brookings correspondent tells me that Chad and Annette placed an ad in the SDSU Collegian a couple weeks ago inviting students to a picnic (food for votes again?) to discuss legalizing marijuana. According to my correspondent, four students showed up. They heard nothing about legalizing marijuana; instead, they got a sales pitch for Chad's fake candidacy and the now fake Libertarian Party.

Correction... for the rest of the press: Reports on Bosworth's arrest and pending trial have perpetuated the misleading labeling her jaunt to the Philippines as a "Christian mission trip." That is technically true, but it was not the original intent of the trip. Bosworth and Haber originally organized the trip as a stunt to promote her fake Senate candidacy and their attorney Joel Arends's veterans organization. In a November planning discussion with Arends, Haber laid out a cynical strategy to exploit Christian guilt to raise money for the trip. The trip only became a Christian mission trip when Haber and Bosworth's hasty organization and fundraising fell predictably short and they had to glom onto an independently organized Wesleyan church mission trip.

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Word of the day: Capone!

Remember how last November I mentioned that EB-5/Northern Beef Packers scandal fulcrum Joop Bollen might have broken the law by lending money without a license and not paying bank franchise tax? I elaborated on that tax-evasion thesis last week.

And now Brown County Commissioner Tom Fischbach thinks there might be some there there:

Tom Fischbach wants his fellow Brown County commissioners to consider a resolution that might allow the county to collect $1.76 million in bank franchise taxes.

...SDRC Inc. doesn’t have a money lending license to legally make loans and does not pay the bank franchise fees, according to the resolution.

In that vein, the resolution said, SDRC Inc. “may have defrauded South Dakota of $2.4 million in bank franchise tax avoidance with a $480,000 ongoing annual tax avoidance.”

The bulk of the overall total would be owed to Brown County, according to the resolution [Scott Waltman, "Fischbach Calls for SDRC Investigation," Aberdeen American News, 2014.09.03].

Fischbach says he isn't sure whether SDRC Inc. qualifies as a bank, but his resolution asks the South Dakota Banking Commission to figure that out for us. Fischbach sprang the resolution on his fellow commissioners unannounced yesterday, so commissioners told him to keep his pants on until next week's meeting.

Did Joop Bollen run a bank without a license? Did Joop Bollen evade bank franchise tax? Those questions aren't just academic or blogospheric scandal-mongering. Those questions can tell us whether Joop Bollen, acting under the authority of Governor Mike Rounds and Governor Dennis Daugaard, cheated Brown County and South Dakota out of another couple million dollars.

I think those questions are worth answering. So does Commissioner Fischbach.

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Yesterday Sixth Circuit Judge Kathleen Trandahl upheld a hearing examiner's May ruling that Attorney General Marty Jackley can keep secret his investigation of Richard Benda's death. Judge Trandahl's ruling applies SDCL 1-27-1.5(5), which exempts criminal investigation records from our public records laws. The state's official position is that Richard Benda's unusual death was not a crime, but AG Jackley investigated whether it might have been, thus allowing him to invoke the public records exemption against reporter Bob Mercer's request for the investigation documents.

I remain dubious, since SDCL 23-5-10 (also cited by Trandahl) says that "criminal investigative information" is "information associated with an individual, group, organization, or event compiled by a law enforcement agency in the course of conducting an investigation of a crime or crimes." Judge Trandahl agrees with the Attorney General's contention that pro se plaintiff Mercer is asking the court to rewrite statute. But Judge Trandahl then paints statute with this interpretation:

The provisions of SDCL 1-27-1.5(5), §23-5-10 and -11 are clearly intended by the Legislature (with certain narrowly defined exceptions) to allow law enforcement agencies the ability to conduct investigations free from mandatory disclosure upon request of a member of the public [Judge Kathleen Trandahl, memorandum decision, Mercer v. South Dakota Attorney General, 32CIV14-120, 2014.09.02].

Even if we allow Trandahl's divination of legislative intent, we can plausibly argue that Mercer's request does nothing to hinder the conduct of a criminal investigation. The investigation is over. Mercer did not file his request until after the Attorney General declared the case closed. Legislative intent to protect the investigative process does not defend continued secrecy in a closed case that found no criminal activity.

Judge Trandahl's ruling does let stand one important point about AG Jackley's secrecy about the Benda death investigation: Jackley owns that secrecy. See one important word in SDCL 23-5-11.

Confidential criminal justice information and criminal history information are specifically exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive, and may be withheld by the lawful custodian of the records [emphasis mine; SDCL 23-5-11].

Ah, there's that statutory may. Not shall, just may. AG Jackley has permission to keep his investigation of Benda's death secret, but he doesn't have to. AG Jackley has signaled his recognition of the optionality of his secrecy by saying he'd like to open the David Lykken investigation files. AG Jackley says he conditions his release of the Benda death investigation on the consent of Benda's family, but AG Jackley apparently sought no familial permission to voluntarily reveal that he was planning to arrest Benda for felony grand theft, information arguably as harmful to Benda's reputation and his family as anything in the investigative record of his death. AG Jackley's choice to keep the public in the dark about Benda's suspicious death ignores the public interest on his whim.

Attorney General Jackley is the one person choosing to conceal the evidence that led him not to challenge the deputy coroner's ruling that Benda killed himself. Judge Trandahl's ruling provides the legal cover for AG Jackley resist Mercer's and anyone else's request for that evidence. But it's still AG Jackley's choice, and it's the wrong choice.

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An eager reader alerts us to an important judicial proceeding coming up this month:

On Tuesday, September 23, 9:30 a.m., at the Law School in Vermillion, the 8th Circuit Court of Appeals will hear Hutterville Hutterian Brethren, et al v. Jeffrey Sveen, Rodrick Tobin, and Harvey Jewett in a RICO conspiracy action which argues Sveen, Tobin, and Jewett caused injury to the Hutterian Brethren though a pattern or racketeering and the law firm of Seigel, Barnett and Schutz, LLP, operated their law firm as a racketeering enterprise, and engaged in predicate acts of mail fraud, wire fraud, bank fraud, interstate transportation of stolen goods, document tampering and obstruction. The proceeding will be open to the public [informed commenter, Madville Times, 2014.09.02].

Adding political spice to the hearing is counsel for the Hutterite faction fighting the oppression of certain Republican cronies, David Olsen:

Arguing for Hutterville will be David Olsen, of Henson & Efron, out of Minnesota. Readers may recall Olsen represented Jesse Ventura in a recent defamation case against a Navy Seal turned author with Ventura winning his case [comment, 2014.09.02].

Olsen has thrown fearless bombs at defendants Jeffrey Sveen and Harvey Jewett and their SDGOP pal Sara Frankenstein as they have played dirty tricks in unsuccessful attempts to besmirch his professional reputation and keep him from defending Hutterites and Indians from their predations.

With the spice come the meat and potatoes of an EB-5 connection:

It's not every day the law school kids can get to see a member of the SD Board of Regents tried in a RICO action. Or a case where our State Auditor's family law firm is called a criminal enterprise. And it's many of the same players in EB5 [comment, 2014.09.02].

While Mike Rounds and Dennis Daugaard hope that everyone else plays State-Fair-dumb and doesn't bring up EB-5 or Northern Beef Packers for the rest of the campaign, the Eighth Circuit may rekindle public attention to the complicated connections among EB-5, Northern Beef Packers, and Jeff Sveen and his Hutterite-supplied Dakota Provisions turkey plant in Huron.

And while the EB-5 issue may not be central to the RICO arguments offered September 23, recall that Sveen secured EB-5 money for Dakota Provisions and played a role in Northern Beef Packers' EB-5 financing, and that both operations may have violated EB-5 rules by using those foreign investments for mere loan refinancing instead of job creation.

The Hutterville-Sveen-Dakota Provisions-Northern Beef Packers-EB-5 web is all too complicated for a two-minute campaign debate response. It will require some more 3,000-word reports from Mercer, Montgomery, et al. as they sit in on one of the most important judicial proceedings of this campaign season... followed the next day by what could be an equally interesting hearing on EB-5 and Northern Beef Packers before the Government Operations and Audit Committee of the South Dakota Legislature.

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The United States Department of Justice is now on the record saying that South Dakota is violating the Indian Child Welfare Act in its removal of Indian children from their homes. On Friday, Judge Jeffrey Viken accepted the DOJ's motion to submit an amicus brief in support of the Indian plaintiffs in Oglala Sioux Tribe v. Van Hunnik.

The federal brief affirms the position laid out by the ACLU that South Dakota has denied Indian parents due process in Pennington County's 48-hour custody hearings and illegally separated Indian children from their families and tribes:

DOJ’s brief emphasizes that the federal government has a “special relationship” with Indian tribes and Indian people, and that ICWA was passed by Congress to promote and further that relationship.  ICWA places substantial limits on the ability of state officials to remove Indian children from their homes in order to protect the integrity of Indian families and the survival of Indian tribes.  DOJ expressly criticized positions taken by the Defendants, one of which contended that the protections guaranteed in ICWA did not apply to their 48-hour hearings.  The DOJ brief explains that, contrary to the State’s arguments, ICWA “immediately imposes specific ongoing obligations on state officials” in these 48-hour hearings [ACLU press release, via Lakota Voice, 2014.08.18].

The 24-page brief, signed along with the motion to file it by U.S. Attorney Brendan Johnson, says to South Dakota, This is what ICWA says, and you're reading it wrong. It explicitly and vigorously rejects South Dakota's contention that we can ignore ICWA in emergency custody hearings.

South Dakota's violation of Indian family rights under ICWA must be remarkable: ACLU attorney Stephen Pevar, who is helping the Lakota plaintiffs argue their case in Rapid City, says this may be the first time since ICWA was enacted in 1978 that the federal government has intervened in a case like this at the District Court level.

The Department of Justice's intervention in Oglala Sioux Tribe v. Van Hunnik makes clear who really stands on the side of Indian families in South Dakota. It's not the co-opted South Dakota Libertarian Party and its cast of clowns who would dismantle government and abandon Indians to assimilation. It's not fake attorney general candidate Chad Haber, who squawks about abuse in the foster care system to exploit Indian children to fill his campaign bank account and blow smoke in front of his and his wife's own corruption.

The real defenders of South Dakota's Indian families are good people who recognize the need for strong laws and strong government to protect due process and tribal integrity from racism and corruption. The real defenders are good people like U.S. Attorney Brendan Johnson, who signed DOJ's amicus brief and the motion to file it, and the American Civil Liberties Union, which has the knowledge and resources to assist Indian families in this case.

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