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Taliaferro Seeks Full Expungement; Jackley Would Punish Innocent Man

Last updated on 2014.09.14

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.


  1. SDTeacher 2014.09.15

    I honestly don't think this is just about Taliaferro. Prosecutors in SD, and in particular the AG's office, hold all people charged with offenses in very low esteem, whether convicted or not. They presume the guilt of every person caught up in the system and people who are acquitted or whose cases are dismissed on constitutional grounds are said to have "gotten off on a technicality" or "gotten lucky with a stupid jury." Although I agree that Taliaferro's charges ought to be expunged, it bothers me that he is portrayed as a particularly sympathetic case when average suspects around the state are regularly treated with open derision when they try to protect their own rights. To the extent that Jackley argues Taliaferro's status as an attorney shouldn't bring him additional "privileges" I tend to agree but would go the opposite way for resolution- instead of refusing to make exceptions for people like Taliaferro how about we stop treating all suspects like crap. They are supposed to be presumed innocent and in a decent society, they would be treated with simple human dignity.

    I wish I was a better person, but there is a small part of me that delights in the fact that a SD prosecutor has the opportunity to feel like an average criminal defendant in SD. Oh the outrage...but only b/c he was a prosecutor. Whatever. Every day hundreds of people are caught up in our justice system and the minute they encounter law enforcement they start losing their human dignity and we don't care. I think I'll save my tears for the average unfortunate who doesn't have Taliaferro's resources.

  2. Tim 2014.09.15

    Is Taliaferro a democrat? Just wondering.

  3. caheidelberger Post author | 2014.09.15

    SDTeacher, I agree wholly: when I read the paragraph about CDL holders being punished without being convicted, I thought, "No way!" The fact that any individual has been arrested should not impact that individual's life, liberty, and property in any way after acquittal or dismissal of charges. If Taliaferro's case can serve to highlight the problems of other individuals unjustly punished by our overzealous prosecutors, then we should take advantage of it.

    And I'm of the impression that Taliaferro's resources are much in his legal skills, not in wealth. He has lost a bundle in fighting the state.

  4. mike from iowa 2014.09.15

    Taliaferro should be pushing Jackley's (and others) prosecution for filing false claims,defamation of character,filing frivolous lawsuits and kicking his dog,and then sue Jackley,the state and the courts for allowing this miscarriage of justice to get this far.

  5. caheidelberger Post author | 2014.09.15

    Tim, I have no knowledge of Taliaferro's political affiliation.

  6. Shirley Schwab 2014.09.15

    Brandon is a Republican.

    Oral arguments are scheduled for October 8, 2014 at 9:00am in Sioux Falls, SD and I would encourage those of you who can, to attend.

    Brandon's legal argument is important and could assist other individuals caught up in similar situations.

    This particular law gives sole discretion to the prosecutor and limits circuit court judge to act and Brandon's legal oral argument is vital and having it heard by the SD Supreme Court is an important step in addressing this statute.

  7. caheidelberger Post author | 2014.09.15

    What?! Brandon's a Republican? I take it all back. Hang him! Hang him high!!!


  8. Rorschach 2014.09.15

    The law says what it says, and I predict he won't find relief with the Supreme Court. It's unfortunate, but some legislator will have to bring a bill to change the law, which may or may not pass over Mr. Jackley's opposition.

    It's terrible how Mr. Taliaferro and Ms. Schwab were hung out to dry in a political prosecution. Mr. Taliaferro should have considered running for AG as a Libertarian, but I don't know anything about his current situation.

    My thought about Mr. Moore is that AG Jackley had a lousy case and found a Democrat to dump the case on to keep his own hands clean. Mr. Moore ought to feel used and a bit dirty after this. Next time AG Jackley comes to Mr. Moore looking for a favor he ought to think better of it. Mr. Moore should withdraw his opposition to the expungement.

    to Mr. Taliaferro. Hang in there! It's not over till it's over. You will probably lose this round with the Supreme Court, but don't give up on SD. There is a reservoir of good will out there for you in the legal community and the community in general. If Mr. Jackley had drawn a serious opponent this year he may have found himself in a difficult race.

  9. bearcreekbat 2014.09.15

    There is an element in our judicial system that worships the process over actual innocence. Supreme Court Justice Anton Scalia said it best when he wrote:

    "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable."

    In other words, Taliaferro finds himself lucky that he has been shown to be innocent of relatively minor offenses. Imagine him being in prison on death row, and then a habeas judge finds that DNA exonerates him. Justice Scalia and like jurists believe that he, as the convicted defendant, still should be executed because he had a full and fair trial, notwithstanding later evidence proving actual innocence.

  10. mike from iowa 2014.09.15

    I was of the understanding that it was better for a number of guilty people to go free than putting an innocent person in prison. Then you see all this prosecutorial misconduct that is allowed to go unpunished because prosecutors have managed to get immunity from criminal acts. Is it my imagination that the worst offenses occur in Southern and then in wingnut run states? Or am I prejudiced?

  11. Roger Cornelius 2014.09.15

    Did the South Dakota state bar ever take any actions against Brandon for either the charges at the time or the dismissal of the charges. Does it matter?

  12. Shirley Schwab 2014.09.15

    I think it is important not to lose sight regarding the real reason behind the malicious prosecution of Schwab and Taliaferro.

    A civil attorney had been hired in June of 2011 to represent the five Mette children in a civil lawsuit against the State of South Dakota for failure to protect them while in foster/adoptive care for over a decade.

    I would ask that you take the time to go to our web site where you will find the three additional documents that will help provide more understanding of this very complicated story. The documents are:

    1) Judge Kean's Expungement Memorandum (12-20-13) will assist the reader in further understanding his ruling on Brandon's November 2013 motion for expungement.

    2) Wendy Mette's Memo to Court (11-18-13) where she wrote the court as the victim of a crime asking Judge Kean to deny the motion. It is also important to note that Prosecutor Mike Moore did not write a brief to oppose Brandon's motion nor did he provide oral arguments at the motion hearing. Rather he came to court and provided the Wendy Mette Memo as his (State's) only answer/response to Brandon's motion.

    3) Wendy Mette Expungement and Stipulation Order (8-22-12). You will note this stipulation order was signed by Mike Moore and Wendy's criminal attorney and filed in the criminal file. This is not normal procedure since expungement motions are to be filed civilly while opening a new file in doing so. In Wendy Mette's case, Prosecutor Moore merely signed a stipulation order and 'poof' Wendy's 11 felony counts were expunged. She didn't have to show up in court or pay a filing fee to have the process completed in the standard legal venue.

    On November 4, 2011 the Mette children were interrogated by two DCI agents in attempt to get them to change their stories and in DCI Agent Mark Black's own words on the off-camera audio that morning (can be heard on our website):

    "We got to get out of this shit over here. That's what we got to do."

    "It gets really expensive for the department of social services."

    However, on that day, during a second video recorded interview of one of the children by two DCI agents, Mark Black asked the child the following: (quoting directly)

    Black: Can I, can I ask you - did, do you know, do you know if your mother was aware of what was happening?

    Child: Ya

    Black: She was aware?

    Child: Ya

    Black: And that is the truth?

    Child: Yes

    Black: Ok

    Black: And no body has asked you to say that - no body pressured you to say that?

    Child: No

    The children revealed many things that day including the fact that mom (Wendy Mette) knew about the abuse that was happening in that home. And yet, all of Wendy Mette's 11 felonies were dropped and her criminal record was expunged - no filing fee, no court appearance. Mike Moore simply signed the stipulation order.

    Criminal acts by the State of SD? Abuse of power?

    Children being denied and robbed of their constitutional rights to file a civil law suit regarding years and years of physical and sexual abuse when the State of SD failed to protect and remove them a house of horrors?

    This is what this story is really about.

    Please find the articles on:

  13. Deb Geelsdottir 2014.09.16

    This sounds like the law that lets cops keep possessions of someone arrested for drugs or other crimes. This is true on a federal level even after they are found innocent or charges are dropped! MN just changed their law this year. Feds have not. I'm guessing SD has this seizure law too.

    Oh, a victim of this seizing can get their stuff back - in a few years - after they spend lots of money in civil court. Hell of a deal. Sounds just like what SD is doing to Taliaferro.

    Shirley, are they pulling similar crap on you?

  14. Shirley Schwab 2014.09.16


    Yes and it has been difficult.

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