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Jackley Grants Mercer’s Request for Review of Benda Death Investigation

On November 26, intrepid reporter Bob Mercer sent Attorney General Marty Jackley a public records request, which makes a strong case for opening the Richard Benda death investigation to public scrutiny. In response, AG Jackley agreed to open those records to review by a media pool consisting of two reporters, pending written permission from a member of Benda's immediate family. That review has yet to take place.

In a fit of defensive pique, AG Jackley used his response to Mercer to declare that Internet blogs (except for Bob's) are misquoting the AG and spreading misinformation.

I'd hate to misquote the Attorney General or anyone else, so for the record, here are Mercer's open records request, which makes a strong case for opening the Richard Benda death investigation to public scrutiny, and AG Jackley's response:

  • To: Office of South Dakota Attorney General, Custodian of Public Records
  • From: Bob Mercer, Newspaper Reporter, Pierre, South Dakota

This is a formal written request under South Dakota’s public-records laws for the reports received by and compiled for Attorney General Marty Jackley regarding the Oct. 20 death of Richard Benda.

I acknowledge that 1-27-1.5 (5) provides an exemption that precludes public release of such documents, and Attorney General Marty Jackley has previously declined to provide the reports citing privacy of the family, but I raise four points of rebuttal.

  1. Benda as a former Cabinet member was a public figure during his service to state government from 2006 through 2010 and he remained a public figure at the time of his death, as shown by the official statement issued by Gov. Dennis Daugaard on Oct. 22 and by the statements issued that day by former Gov. Mike Rounds.
  2. The attorney general conducted an official investigation into the death of Richard Benda. That investigation required four weeks to complete and resulted in the official findings that Benda died of a self-inflicted gunshot wound and it was suicide. News accounts and Internet blogs have raised questions about the death. Release of the reports would allow citizens to judge for themselves the depth and scope of the processes that lead to the conclusion that Benda killed himself.
  3. It is standard practice in South Dakota for the attorney general office to release the findings from investigations of officer-involved shootings. While that isn’t a direct comparison to the Benda investigation, there is a high level of public interest in both matters and a corresponding state interest in maintaining confidence in law enforcement.
  4. State public records law contains exemptions to the exemptions. Specifically, 1-27-1.10 provides that in response to any request “the public record officer may redact any portion of a document which contains information precluded from public disclosure by 1-27-3 or which would unreasonably invade personal privacy, threaten public safety and security, disclose proprietary information, or disrupt normal government operations.”

Circumstances changed in the 24 hours after Attorney General Jackley declined to release the death-investigation records. The “unreasonable invasion” of personal-privacy standard didn’t prove to be a barrier to the release by the governor of the Attorney General’s criminal-activity investigation regarding Richard Benda on Nov. 22, 2013. That was one day after the Attorney General delivered to the public his summary of the cause of death of Richard Benda on Nov. 21, 2013.

If in your judgment the full reports from the death investigation can’t be released because of the “unreasonable invasion” standard, redacted versions of the reports could be released as public records. They involve a public figure and a public investigation that is directly connected to a criminal investigation that is now public.

Further, the criminal investigation that was performed by the Attorney General at the request of the governor’s lawyer currently involves the misdirection of $550,000 of South Dakota public funds as well as alleged double-payments of more than $5,000 by state government to Richard Benda for double billings of airline tickets while he was a state official.

It is for these reasons that I pray the Richard Benda death-investigation reports be declared as public records and they be provided, whether in whole or in redacted versions.

[Bob Mercer, public records request, 2013.11.26]

Jackley's full response is in PDF format. He explicitly grants Mercer's first point of rebuttal, that Benda was a public figure, meaning his death is subject to more public scrutiny. Jackley grants Mercer's third point, that high public interest and maintaining public confidence in law enforcement justify opening investigation records. He acknowledges Mercer's fourth point and simply notes the exceptions to open records law that keep criminal investigation information confidential. Jackley says, "I am not at liberty to discuss whether or no there is grand jury activity in a case," but then points pointedly to South Dakota Codified Law 23A-5-16, which forbids disclosure of matters occurring before a grand jury.

Jackley's pique spills out in his response to Mercer's second point of rebuttal. Mercer mentions "Internet blogs" (Bob, that's redundant) alongside news reports as evidence of keen public interest in a suspicious death and extraordinarily long state silence, and Jackley shouts back:

It is true that the Attorney General conducted an official investigation into the death of Richard Benda to namely determine whether there was evidence of foul play. That investigation was assisted by both federal authorities and local law enforcement. That investigation required just under 30 days to complete both an independent autopsy by a forensic pathologist as well as an independent crime scene investigation with considerable forensic testing. Considering the involvement of of federal, state and local law enforcement authorities, there has been absolutely no credible facts or evidence calling into question either: (1) the forensic pathologist report, or (2) the Attorney General’s released information that the death investigation reconstruction and forensic testimony demonstrated no foul play and were consistent with the suicide ruling. Internet blogs, specifically excluding yours, that speculate and provide misinformation about cause of death ranging from heart attacks to gunshot wounds to the head, and otherwise misquote that Attorney General’s written releases, fail to provide justification for any release of documents. Furthermore, press releases issued by political parties that fail to state any factual or legal basis, further ignoring the participation of federal, state and local law enforcement, do not support a public record request. However, I do believe that release of reports fashioned in such a way to protect the presumption of innocence, other criminal process safeguards and individual privacy interests would assist the public in appreciating the process and circumstances.

[Attorney General Marty Jackley, response to public records request, 2013.11.26]

Boy, and that was before Sam Kephart opened up with his Chinese mafia hypothesis.

If Jackley is allowed to get steamed, so am I. As publisher of the best political blog in South Dakota, I invite Attorney General Marty Jackley and everyone else to show me examples of where I have published misinformation (deliberate misrepresentation of the facts available, also known as lies) about Benda, Jackley, GOED, SDRC, NBP, or anything else. Show me an example of where I have published false information and not corrected it. Show me one instance where I have misquoted the Attorney General.

I'll survive Marty's gratuitous swipe at blogs and the Democratic Party (wait: he didn't actually say "Democrats," but what other party has had the guts to respond to the GOED/EB-5/Benda affair with public statements?). But don't miss the main point: even as Jackley moans about blogs and others calling spades spades, he acknowledges that releasing records surrounding Benda's death, with reasonable protections for privacy and presumption of innocence, is a good idea.

So we agree, right, Marty? Or am I finally misquoting you?


  1. Jim 2013.12.03

    Cory, as a journalist like PP (remember that proud day pat?), maybe you submit your own request, if anything just to see what type of response you get. I just hope they don't redact everything but the conclusion.

  2. Rick 2013.12.03

    Me thinks Jackley doth protest too much. Such a hotheaded and unnecessary statement belying a rank amateur.

    Good response, Cory. Keep him pinned to the wall.

  3. John 2013.12.03

    "Public figure - family privacy" -- horsefeathers. Benda was allegedly participating in a licensed, heavily regulated public activity - hunting. All these hunting incidents and accidents are public information. GFP publishes a synopsis of them annually in the spirit of lessons learned so future hunters avoid making old mistakes. Everything in the Benda episode and investigation concerning his presence and actions in the field are subject to public release - just as if Benda's demise were from any public, licensed, heavily regulated activity such as driving.

    It appears that the AG's office has a few things for which to act defensively. First, they've shared few if any independently verifiable facts. Some of this is understandable with the on-going federal investigation. Some of this is not understandable since apparently the AG's office came to final conclusions . . . the "press pool" is a faint, first step in revealing verifiable evidence on which to base final conclusions. Second, there is apparently no evidence the state investigators interviewed the principles in . . . 6+ months. The law enforcement academy teaches to conduct interviews as soon as possible to fix a principle actor to a story. The public lacks assurance that occurred, and if not, why not. Third and fourth requires the prudence of good governance to further the investigation inquiries raised by Mr. Kephart and Rep. Tyler.

    We were once taught the basis of good governance is to: trust but verify. We are a long way from being able to trust or verify. It would be outstanding if the AG or governor would rise to the occasion and establish fully independent, investigations and accounting using reputable parties with few to no South Dakota ties.

  4. lesliengland 2013.12.03

    cory-didja ever get back to deb when she said you did not know what you were talking about re: suicide?

    while this second guessing suicide at the coffee shop routine you are running is uninformed, stigmatizing (oh, there is that word again), less than professional and likely unethical, as a strong democrat, i stopped following the details of your dallas-expose; but would only add "shout" seems to be a misunderstanding of what lawyers do. Was that yours or a mercer characterization?

  5. caheidelberger Post author | 2013.12.03

    No, I didn't, Lesli, since Deb recommended we save that conversation for another post focusing on suicide and not distract from the serious news of Benda's suspicious death. I stand by the words I used in the earlier post that draws your attention.

    I also stand by my use of the word "shout" here as a reasonable characterization of the relative intensity of Jackley's response on that point. Compared to the restraint on the other points, Jackley's outburst about blogs, misinformation, and misquotation (which he makes without offering any evidence) comes across quite like a shout.

    I also stand by the ethical integrity of everything I have written here.

  6. Jana 2013.12.03

    Jackley is torn between doing his job for justice and doing his job for the party.

    Tough spot to be sure.

    His past performance of joining in lawsuits to nullify the elections decided by the overwhelming majority of Americans of 2008 and 2012 do tend to hurt his credibility as a seeker of truth and justice.

  7. Roger Cornelius 2013.12.03

    Cory has not been on a fishing trip or Dallas-expose regarding the Benda death, GOED/EB5 scandal or the Bosworth raffles.
    He has provided adequate information and documentation to support his positions and get the interest of his readers. If there is speculation here on Madville it is from those of us that comment and not from Cory.
    If Jackley, Rounds, and Daugaard simply responded to infromation request and provided it to South Dakota citizens there would not be a need for Cory's research and reader speculation.

  8. Bree S. 2013.12.04

    Apparently Jackley objects to freedom of speech in the comments section.

    You know if he'd just said "Blogs that speculate and provide misinformation" and stopped there we would have all logically assumed he meant the DWC.

  9. caheidelberger Post author | 2013.12.04

    For the record, my comment section is open to all, including Pat Powers. If anyone wanted to come and point to specific items of misinformation or misquotations of the Attorney General that I have committed on this blog, that door is open. No one yet has done so. Leslie seems bent out of shape over my view of suicide, but that's immaterial to the accuracy of my reporting.

  10. caheidelberger Post author | 2013.12.04

    Hey, what is a "Dallas-expose"? Is that some fancy cheerleader move?

  11. Jim 2013.12.04

    My guess is it refers either JFK, or "who shot JR".

  12. Les 2013.12.04

    Mercer with all his political savvy is probably the one to source all the unattended deaths in SD that did not get the autopsy performed. The AG and DCI stated according to the son of a man shot(apparent suicide) they were ok with the local opinion of coroner and sheriff's dept and that they are elected officials and can do as they wish. No autopsy. The family claims there have been 4 suicides locally they don't believe had the required autopsy.
    Does our state truly have a law that unattended death requires autopsy? ( ) If so how does this behavior strengthen our trust in the establishment for those of you commenting about throwing to see what sticks?

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