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.
This law is among others that prevents South Dakota from having any reasonable sunshine or freedom-of-information laws. The Morgan Lewis death at NSU was also cloaked in this kind of secrecy. South Dakota qualifies to be a member of the Russian Federation, not the USA. Revision of the legal code should be a major political goal, but South Dakota is South Dakota.
Cory,
Do you think the Benda family was involved in the death of Rich?
If not, do you think the Benda family would prefer it thought he killed himself vs. if he was murdered, that his killer be brought to justice?
Finally, if the above answers are in the negative, what is the compelling interest for you (or anyone else) to know the details of his suicide?
Jackley, The Keeper of the Webs, can keep up his string of deceptions for so long before one of the webs slips out and we gain more insight to the mysterious death of Richard Benda and what appears more and more to be an active cover up designed to conceal the truth from the South Dakota public. When this starts unraveling after the election, documenting Jackley's actions to conceal and obstruct justice may make for an interesting criminal and/or civil case further on down the road. Perhaps a federal action.
No matter what The Keeper of the Webs does, this ain't going away. Right, Marty?
David, Mike Rounds might escape the truth of his administration's criminality, which will allow him to get elected U.S. Senator, but the South Dakota Republican Party is now publicly on the hook for its full participation in concealing Rounds' complicity and negligence as Governor in the Benda/EB-5 Scam.
The 2016 election is going to see the boomerang swing back nationally against the National Republican Party. John Thune, with his own scandal involving the incarceration of his campaign manager and campaign landlord Dan Nelson, is on the 2016 ballot. That score still isn't settled. If Democrats are mad enough after the 2014 election, they had better gear up for a real set of opportunities in 2016 to take back seats in the S.D. House and Senate, defeat Chris Nelson to create balance on the Public Utilities Commission and scare the liver out of useless Noem and Thune.
The 2018 election finds an open seat for Governor and other constitutional offices (I predict the Keeper of the Webs will be political toast by 2018) and an opportunity to win the legislature after what will be 40 years of uninterrupted and corrupt one-party rule in Pierre. If the Democrats get on their feet and keep a stiff spine, they could also control redistricting in 2020 for the first time in state history.
While I continue to hope the Mike Rounds regime's criminality to be plainly exposed before the Nov. 4 election this year, I predict the continued criminality into the Dennis Daugaard regime will haunt the S.D. GOP for a generation and could finally change the course of governance for the better.
Can anyone file a wrongful death suit in Bendagate to compel release of the crime scene investigation?
"do you think the Benda family would prefer it thought he killed himself vs. if he was murdered, that his killer be brought to justice?"
I would guess it depends on what his life insurance policy said.
" if the above answers are in the negative, what is the compelling interest for you (or anyone else) to know the details of his suicide?"
Because he got some of our money, and there is a lot of that missing. Because he was one of two people that could have answered questions involving EB5, and his death was convenient.
I'm going to say the same thing that a States Attorney would tell you when investigating a case. "If you haven't done anything wrong why not answer the questions?"
The Blindman
" Who May Sue for Wrongful Death?
A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent's death (they are called the "real parties in interest"). The representative is usually the executor of the decedent's estate. The "real parties in interest" vary from state to state."
http://www.nolo.com/legal-encyclopedia/wrongful-death-claims-overview-30141.html
Whit this one exception.
"All persons who suffer financially. Some states allow all persons who suffer financially from the death to bring a wrongful death action for lost care or support, even if they are not related by blood or marriage to the victim."
" Immunity for Government Agencies and Employees
In some cases, certain persons or agencies may be immune from a wrongful death lawsuit. That means they cannot be sued for wrongful death. Who might be entitled to immunity again varies from state to state. For example, in some situations, government agencies and employees might be immune from a wrongful death lawsuit, or even family members in certain circumstances.
Recent federal laws provide immunity from wrongful death claims to defendants in railroad collisions and certain product liability cases including medical devices. Such immunity might also extend to drug manufacturers -- this will be decided by the U.S. Supreme Court in 2009."
It doesnt look to good for wrongful death suite.
The Blindman
Would this matter of Richard Benda's mysterious death be an issue today if Marty Jackley had kept his promise to South Dakota that two reporters would be able to review the death report and investigation information?
No, if indeed the information, photos, etc., were convincing that Benda propped up his shotgun to his abdomen and used a nearby stick to push the trigger to shoot himself. If, as Marty Jackley claims, that was enough for all the investigating officials to reach their conclusion, this would not be an issue yet today, a little over 10 months later. I don't think Bob Mercer or Ben Dunsmoor of KELO are on a political crusade here. They do what credible, professional news reporters are paid to do, get at the truth.
Yes, if there was doubt it was a suicide. And that brings a raft of questions, especially since Jackley refrained to be honest until a month ago that he was bringing a grand jury and three felony counts against Benda a couple weeks before his Oct. 22 gunfire death.
It's just that damned simple. What other alternative could be at play here?
As to whether someone might have pulled the trigger, all you have to do is witness the hundreds of millions swindled in the Mike Rounds EB-5 operation and who might be mad, or jealous, or scared of being fingered in a federal investigation, or greedy enough. That's a long list.
I also predict that before this is over, it will be a long list of people who will face charges from the feds, not from Marty Jackley who declared his investigation at an end a long time ago but failed to tell us he was pursuing felonies until last month.
And since Gov. Dennis Daugaard claims he's been on top of this, including his own proclamation on Benda's "suicide," why did he fail to tell anyone outside his inner circle in our State Capitol that three felonies and a grand jury were involved prior to Benda's mysterious and violent death?
Politics. And running down the clock.
Thanks, Bill: darn it anyway.
Blindman-the citizens of the state of South Dakota lost 3 or 4 million in monies to NBP. They should have a right to sue to collect their monies and to determine their standing,they need to see ALL materials pertaining to Benda's so called suicide. How does that sound? Besides the idea that he shot himself in the abdomen committing suicide sounds totally absurd.
Judge Trandall is a vindictive partisan hack always willing to side with the rich and influential.
She running for reelection unopposed:
http://judgepedia.org/Kathleen_F._Trandahl
She's been overturned before:
http://www.ipetitions.com/petition/remove-judge-trandahl
I found it curious that Judge Trandah. showed her bias in this ruling by citing the death of Clinton associate Vince Foster. Using the death of Vince Foster was a poor attempt to balance the scale between Republicans and Democrats.
Blindman has a great point - life insurance policies typically deny benefits if the insured dies by suicide. If Benda has a life insurance policy it would seem that his family would be benefited by full disclosure, especially if that disclosure challenged the suicide determination.
Indeed, Mr. Dithmer is right. If Mr. Benda's family smelt any nastiness involving Chinese Mafia or politicians running around blasting at poor bastages walking through shelterbelts that haven't produced a rooster in years, why they'd be pounding the table demanding that the results be made public and crawled through like a baby in a tub of jelly worms.
Could it be that when Jackley spoke to the family, that he "advised" them to not allow he details of Benda's death be made public?
But, perhaps the family did really does not want the details to be made public due to concerns about the children in the family, or extended family, might have to deal with from other children? Kids can be downright cruel to each other.
JeniW,
You maybe on to something. Just how did Jackley make the suicide presentation to the family and their right to keep the details of Benda's death closed. How much did he influence them to do the latter?
I am just spitballing here but maybe this Mr. Jackley fellow you all hate so much promised to pay the family MORE than the life insurance would have been. In fact, this makes so much sense it must be the case. He probably can use his campaign funds or a PAC or something so it doesn't even come out of his own pocket.
The appellate judge’s ruling may stand as a judicial record, but as a piece of rhetoric it contains specious arguments and errors in reasoning.
The most blatant is a Catch-22 type argument. She cites that Bob Mercer included statements of purported fact that were not supported by the administrative record. Mercer’s request was to obtain access to the full administrative record so that information generated by the investigation could be compared with information that came from other sources, which might or might not have been included in the investigative record.. The absurdity is that Mercer did not include information that he had been denied access to.
Another glaring error is in the citation of the Vince Foster suicide. What federal investigators withheld from the public was crime scene photographs that were graphic and grotesque in their portrayal of Foster’s death. The feds feared that the release of such photographs would serve only the tabloids which feed on graphic sensationalism. No facts about Foster’s death as accumulated by the investigators were withheld. In fact. the facts were made public when the GOP began speculating that the Clintons had something to do with Foster[s death. The Climton’s demanded full disclosure. In response to those with questions about Benda’s death, state officials and judges have imposed secrecy.
The whole affair raises critical questions about the integrity and competence of the state’s justice system.
Do we still have a justice system here, or has the judicial system become just an extension of the corrupt republican state government?