Having to dig deeper than I to find reason to be thankful this fine holiday is attorney Brandon Taliaferro, whose appeal for expungement was rejected by the South Dakota Supreme Court this week. In a ruling filed Tuesday, a unanimous court said that the wording of the law prevents them from doing Taliaferro the justice of erasing from his record his arrest for crimes of which he is completely innocent.
Recall that Taliaferro was trying to help foster children who had been sexually abused by Richard Mette, who went to the penitentiary for his crime. For what seems explicable only from a nasty political perspective, the state cooked up seven charges against Taliaferro revolving around the idea that he and social worker Shirley Schwab tried to coax the foster children into providing false testimony against Richard Mette and his wife Wendy. The state utterly failed to make its case. Judge Gene Paul Kean threw the case out at the close of the state's arguments, saying the state had failed to offer any evidence requiring a response from the defense. This year, Circuit Court Judge Gene Paul Kean expunged five of the seven charges for which Taliaferro was wrongly arrested.
But prosecutor Michael Moore dismissed one charge before the acquittal and another before it was brought to trial. When Taliaferro asked that those two baseless charges be expunged, Moore said no. The state had no problem expunging eleven felony child abuse charges from Wendy Mette's record, even though the state had triable evidence to support those charges. But Taliaferro had to appeal to the Supreme Court for similar relief.
The Supreme Court says it cannot provide that relief. Justice Lori Wilbur says the plain language of SDCL 23A-3-27 lets the prosecuting attorney do what Moore has done and what Attorney General Marty Jackley has supported: bring baseless charges against an innocent man, dismiss those charges before facing the withering scrutiny of court and an embarrassing acquittal, then chain the wrongly accused man with an arrest record that he has to explain to every future employer. Justice Wilbur acknowledges that the result is "unfavorable" and "harsh" but writes that Taliaferro's "appropriate avenue for relief in this case is through the Legislature."