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Bogus Arrests Hamstring Innocent Citizens; State Practices Selective Justice

Last weekend I posted on attorney Brandon Taliaferro's upcoming appearance before the South Dakota Supreme Court to ask that bogus criminal charges be expunged from his record. John Hult does good work this weekend explaining the many ways in which the state's petty refusal to expunge those charges acts as unjust punishment of an innocent man:

In an era of easy, online access to criminal records, past arrests and charges can haunt a person's housing, employment and education prospects for years, even when they don't lead to convictions.

"In a courtroom, everyone knows you're innocent until proven guilty, but the members of the public don't always differentiate between charges and convictions," said Tim Rensch, a Rapid City defense lawyer. "People draw conclusions just based on the existence of a charge."

Companies considering new hires will run a check of public records. If the potential employer sees an arrest record, he said, that's enough to take someone out of the running before they're ever able to say that a charge was dismissed [John Hult, "In South Dakota, Clearing Criminal Record No Easy Task," that Sioux Falls paper, 2014.09.20].

Leaving a false arrest on the record becomes an endless tax on the innocent citizen's ability to make a living, delaying and denying opportunities for no good reason. I note with dismay that Minnehaha County State's Attorney Aaron McGowan is willing to impose such extrajudicial pain:

"If I believe there's an arrest that should not have occurred, we'll agree to expungement," said Minnehaha County State's Attorney Aaron McGowan. "If I believe someone did it, but I can't prove it, I will resist" [Hult, 2014.09.20].

Suppose a friend or a neighbor does you wrong. You don't have the time or lawyer-money or court-actionable evidence to bring that person to court. But you take that wrong as reason not to trust or work with that person again. That's fine.

But as long as that person remains innocent in the eyes of the law, you should not get to sue the power of the state to impose any further burden on that person.

Related Goose and Gander Reading: If you review Taliaferro's brief to the court, you learn that prosecutor Michael Moore asked for and the court granted expungement of Wendy Mette's eleven felony charges of abuse or cruelty to a minor. The prosecutor had testimony from her foster children that she had known about the sexual abuse her husband Richard had committed against them. In his brief to the Supreme Court, Taliaferro notes that the state had stronger evidence against Wendy Mette and perhaps did not even have the technical statutory grounds on which to allow expungement of her record.

When Taliaferro requested expungement, the state submitted an affidavit from Mette as justification for rejecting Taliaferro's request. Judge Gene Paul Kean viewed Mette's affidavit dimly:

In her conclusion, Wendy writes: "Mr. Taliaferro altered our lives forever, and he has not even begun to show any type of understanding of what exactly happened, nor has he made any offer or attempt to take any responsibility for his direct part in it." The reaction this court has is: Really? Taliaferro altered her life forever? Has Wendy forgotten about Richard who is in prison for sexual assaults on the children? Richard, who Katrina indicated was continuously assaulting her and at one time indicated that Wendy saw the episode and did nothing which was reported to DSS? While Wendy disagrees with this report, it was the information that the Brown County States Attorney's Office had at hand when the cases were commenced. Obviously Wendy is highly selective in recalling the history of events. This court should and does give little weight to this affidavit which is self-serving and inconsistent with the facts from the various cases involving her, Richard and the children [Judge Gene Paul Kean, expungement ruling, quoted in appellant brief, Taliaferro v. South Dakota, 2014.06.02, p. 17].

Mette's expungement was filed August 22, 2012, the same day as the pre-trial hearing at which, according to Taliaferro's brief, DCI agent Mark Black said the state had no evidence that Taliaferro had committed the crimes with which he was charged. According to a footnote in Taliaferro's brief (p. 4), "After State dismissed Wendy's eleven felony child abuse charges, consented to expungement of her record and placed the child abuse victims back in her legal and physical custody, State called Wendy as a witness at the grand jury that indicted Taliaferro."

The state of South Dakota seemed motivated to free Wendy Mette of the burden of punishment for crimes that the State never proved in court that she committed. It is odd they do not feel the same motivation to provide Brandon Taliaferro the same justice.


  1. mike from iowa 2014.09.21

    Whether you like the Clintons or not,they are still guilty of crimes they have been legally exonerated from,in the court of public(wingnut) opinion.

    Taliaferro should sue the state for every penny Bollen and others absconded with to clear his name.

    As an aside,the guy who beat AP's son to death is once again free on 2 million dollars bail. He was jailed for the crime,released on bond,assaulted the mother,re-arrested and now is free again.

  2. caheidelberger Post author | 2014.09.21

    Actually, Mike, Bill Clinton himself admitted he engaged in inappropriate behavior in the Oval Office. The state has no such admission from Taliaferro and put no testimony from anyone on the record in court saying that Taliaferro committed the acts of which the state accused him.

  3. 96Tears 2014.09.21

    Mike Rounds' commutation of murderer Joaquin Jack Ramos' sentence stands as another bizarre example. The murder of his pregnant girlfriend was in 1994. It makes me wonder whose skid got greased for this incredibly poor judgment:

    'Rounds stated publicly at the time that information he had received from the parole board allegedly described Ramos as a “model prisoner” and capable of being returned to society. Following his announcement, Rounds soon heard from McLain and other family members, who were shocked and outraged at the action and that they had not been contacted for their input. Rounds stated that they were unable to be located.' [Hill City Prevailer, Feb. 9, 2011 - ]

    Apparently, slipping a million check to his pal and cabinet member Richard Benda wasn't the only stupid thing Rounds did in the closing days of office.

  4. jerry 2014.09.21

    Its all about the money and a cheap work force. Take a look at the 24/7 program and you can get the feel of how justice works in South Dakota. You pay to pee in the jug along with the fees of your bondsman and all of the rest of the hands that must be greased along the way. The rich guys just write a check and they are done with it, but it is still a cash cow. The poor are on the installment plan. They make just enough to keep them out of jail by paying their fees to all involved. In some societies it is called slave labor, here, we call it social justice. On the plus side, you may even get to wear a bracelet, just like the old days prior to the Civil War. Oh, I wish I was in Dixie....sing along

  5. mike from iowa 2014.09.21

    I wasn't aware inapporpriate behavior was an actual crime. I was speaking to Whitewater,Vince Foster's suicide,travelgate,Clinton being accused of masterminding the CIA's use of Mena,Ark airport to run guns to Central America and bring back drugs,etc. Lying to the wingnut thugs in Congress should have gotten Clinton a Nobel.

  6. Rorschach 2014.09.21

    I wasn't aware that Wendy Mette had dismissed charges expunged from her arrest record. For the State to do that - in violation of the language of the expungement statute - and then enforce that very same language of that very same statute to argue that Brandon Taliaferro can't have an expungement because the charges were dismissed rather than litigated - is worthy of the sternest condemnation by the Supreme Court. It is evidence of prosecutors who feel they are above the law.

  7. Rorschach 2014.09.21

    I take that back, and now after looking it up I see what happened here. SDCL 23A-3-27(2) allows expungement if the "entire criminal case" against someone is dismissed as it was for Wendy Mette but not for Brandon Taliaferro. It looks to me like the law needs to be changed to allow expungement of those charges that are dismissed even if other charges go forward to trial.

  8. Shirley Schwab 2014.09.21


    I am not certain of your interpretation of that statute but find the following possibly contrary to that interpretation:

    Page 7 & 8
    Appellee's Brief

    'Where Taliaferro sees "injustice" in permitting records of dismissed charges to outlast records of related charges that end in acquittal, he loses sight of the fact that he is still better off than if all charges had been dismissed before trial and Special Prosecutor Moore had vetoed expungement of the records of seven arrests rather than two.'

    The discretion to 'allow' the expungement, according to statute, basically lies with the prosecutor or in Taliaferro's case to 'veto' the expungement of the records of seven arrests rather than two.

    Moore expunged Wendy Mette' s arrest records in a stipulation order (not even filed in a civil file) because he wanted to on August 22, 2012.

    Moore chose not to expunge Brandon's remaining two arrest records because he did not want to not because he could not.

  9. caheidelberger Post author | 2014.09.21

    Rohr, Taliaferro's appelant brief discusses SDCL 23A-3-27 in great detail. With regards to Taliaferro's case, the contention is that the entire case was essentially dismissed, in that the charges were inextricably intertwined. The brief takes time to contend that SDCL 23A-3-27(2) doesn't allow Mette's expungement, because of one other key phrase: the judge may expunge "With the consent of the prosecuting attorney at any time after the prosecuting attorney formally dismisses the entire criminal case on the record...." The appellant brief contends that the dismissal of the charges against Mette did not happen on the record in a hearing, but the court allowed the expungement anyway. If that technicality didn't stop Mette's expungement, should the technicality of the combination of dismissal and acquittal stop Taliaferro's?

  10. John 2014.09.21

    Tis the difference between a prosecutor and a states attorney. Far too many with the latter title practice as the former. Prosecuting a case that is not provable beyond a reasonable doubt at the onset should be a crime against the public, the constitution, and should receive criminal sanctions. It's long past the time when "prosecutors" should be answerable to the constitution instead of invented "immunity".

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