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Kaiser: SD Acts Like Third World Country in Refusing to Expunge Arrests of Innocents

I've mentioned Rep. Dan Kaiser's (R-3/Aberdeen) House Bill 1134, which removes the loophole prosecutors can use to prevent the expungement of arrest records, which allows the state to continue persecuting innocent people they've wrongly arrested.

At Saturday's crackerbarrel in Aberdeen, Rep. Kaiser explained why HB 1134 is important to him and to democracy:

Rep. Dan Kaiser (R-3/Aberdeen) speaks at crackerbarrel, Northern State University, Aberdeen, South Dakota, February 7, 2015.
Rep. Dan Kaiser (R-3/Aberdeen) speaks at crackerbarrel, Aberdeen, South Dakota, February 7, 2015.

...[T]his bill reeks of Americanism. This is an expungement bill of people with arrests, not people who have been convicted, and in America, you are innocent until proven guilty.Now, unfortunately, in Third World countries, they have laws set up where the government gets to keep their thumb on people, innocent people. And sadly, I view it, that is our state law right now, that even people whose charges have been dismissed because there is not enough evidence to bring their case forward cannot that off the record. By definition, as Americans, these people are innocent, and yet we have laws in place that allow the government to keep their thumb on those folks [Rep. Dan Kaiser, remarks, crackerbarrel, Aberdeen, SD, 2015.02.07].

The two main perpetrators of the Third World thuggery that prompted HB 1134, Beadle County state's attorney Michael Moore and Attorney General Marty Jackley, both testified against HB 1134 before House Judiciary on Wednesday. Sounding nervous, Moore said the Brandon Taliaferro case was the only expungement request in twenty years that he has turned down. Moore said he applies three criteria to expungement requests:

  1. Did the person deserve to be charged? Moore insisted that, based on victim input and grand jury findings, Taliaferro deserved his charges.
  2. Does the person requesting expungement come to the prosecutor's office and explain why he deserves expungement? Apparently Moore expects applicants to ask him personally for the expungement, to explain how they have changed their life around."
  3. Does the expungement meet the interests of justice and the public? Moore did not elaborate on this point. But he apparently disagrees with the South Dakota Supreme Court's finding that the refusal to expunge Taliaferro's arrest, while legal, was "harsh."

Moore said no law should be changed because of one instance. He complained that no legislators had asked him to explain the details of the Taliaferro case motivating HB 1134. "At least get the facts: call me, I'll take you to lunch, I'll explain to you this case and why I withheld my consent." Moore did not lay out those facts for the committee at Wednesday's hearing; he apparently believes matters of justice like this should be resolved in a nice off-the-record lunch.

Rep. Mike Stevens (R-18/Yankton) dismissed Moore's contention that HB 1134 is a response to just one particular case. He summarized the effect of HB 1134 in committee discussion Wednesday:

...[I]t's a matter of due process. Our United States Constitution and our state of South Dakota constitution, at the heart of it is due process, fairness, having an opportunity to have a hearing. And when you have a statute like we have right now that allows one person to prevent due process, to me, that's not fairness, and that's not accountability [Rep. Mike Stevens, discussion of HB 1134, House Judiciary Committee, Pierre, South Dakota, 2015.02.04].

Rep. Isaac Latterell (R-6/Tea) asked Moore if a judge is less biased in deciding whether to expunge an arrest than the state's attorney who made that arrest. Moore rejected the assumption that prosecutor's are biased. "I'm probably the most forgiving prosecutor I know," averred Moore. He said he has to stand for election and wouldn't win re-election if he were biased.

Point of reality: state's attorneys are inherently biased. They order the arrest. They bring the charges. They stake their reputations on the outcome of a public trial in an adversarial system that presumes and accepts bias from both sides and leaves it to judge and jury to sort things out.

Attorney General Marty Jackley joined Moore to raise constitutional concerns. He said the 2012 Oliver case, which informed the 2014 Taliaferro ruling, hinged on Article 3 Section 4 of the state constitutions, which vests the power of expungement entirely within the executive branch, not the judicial branch. HB 1134 would thus unconstitutionally take away the executive branch's authority over expungements via prosecutorial consent.

Lindsey Riter-Rapp of the South Dakota Association of Criminal Defense Lawyers made short shrift of that argument. She noted that Oliver dealt with an individual who requested expungement of an arrest that led to conviction. HB 1134 deals with expungements for innocent individuals, against whom charges were never filed, whose case the prosecutor dismissed, or who win acquittal.

Rep. Timothy Johns (R-30/Lead), a former judge, further schooled AG Jackley, asking why, in the spirit of open government, a prosecutor under the reform of HB 1134 couldn't still go to the judge and make his case against expungement. AG Jackley was non-responsive, resorting instead to the comment that expunging arrests violates the spirit of openness by allowing people to "misrepresent" whether they've been arrested. Rep. Johns rolled past AG Jackley's barricades, affirmed Riter-Rapp's reading of Oliver, rejected any suggestion that HB 1134 is unconstitutional, and said any prosecutor who wants to block an expungement should go to the judge and explain why.

AG Jackley also attempted to conflate the issue of Taliaferro's arrest with Taliaferro's firing as a deputy prosecutor in Brown County. AG Jackley said the state's attorney had acted appropriately in terminating a prosecutor who had behave inappropriately and that while that inappropriate behavior was not necessarily criminal, that fact did not justify expunging the arrest or making an unconstitutional statute.

AG Jackley's sentence should have stopped at "not necessarily criminal." If an action is "not necessarily criminal," why is any arrest taking place? Why is the state keeping its thumb on an individual for an arrest that never should have taken place?

Rep. Kaiser HB 1134 identifies a clear problem with current law. AG Jackley and prosecutor Moore have used state law to punish an innocent man. Their testimony Wednesday, which gave no specifics on why Brandon Talieferro's unjust arrest should remain on his record, further exposes that urge to oppress and deceive. State law currently allows them to exert that oppressive power unchecked. HB 1134 justly removes prosecutors' opportunity to abuse their power.

So far, the majority agrees. HB 1134 passed House Judiciary 9–3 Wednesday and cleared the full House 64–2 Thursday. The only nays in the full House came from two Democrats, Rep. Peggy Gibson (D-22/Huron) and Rep. Kevin Killer (D-27/Pine Ridge). HB 1134 next goes to Senate Judiciary, date to be determined.


  1. 96Tears 2015.02.08

    Marty Jackley likes the thuggery option.

    Makes me wonder what kinds of communications occurred between Jackley and Richard Benda before Benda's violent and mysterious death.

    Makes me wonder why Jackley decided to wait until late July to let the public know he had three felony counts and a grand jury to wallop Benda shortly before Benda's violent and mysterious death.

    Makes me wonder what kind of power Joop Bollen has over Marty Jackley that Jackley won't exercise the same prosecutorial (or persecutorial?) zeal he had reserved for Bollen's partner in fleecing the federal EB-5 program and the State of South Dakota.

    When legislators have Marty Jackley in front of them to testify on how he pursues criminal investigations, why don't they ask some of the harder questions as long as Marty wants to pontificate about his selective uses of the law?

  2. mike from iowa 2015.02.08

    Jackley's accounts have more holes than Benda's torso. 96 Tears nails it good.

    As for Benda,if Jackley had put him in a diversionary program for first time offenders,he should be in good standing since he hasn't committed a crime in nearly 18 months,no offense.

  3. larry kurtz 2015.02.08

    Tim Johns had better watch his six if he queers Marty's pitch, init?

  4. larry kurtz 2015.02.08

    Twenty bucks says Johns will be taken out of the legislative pool and dumped into the state judiciary.

  5. grudznick 2015.02.08

    larry, you say init just like a white boy from Spearfish.

  6. CLCJM 2015.02.08

    I just hope enough people are watching the legislators and Jackly and other prosecutorial types in this state. Maybe, it will open some eyes.Maybe!

  7. larry kurtz 2015.02.09

    grud: what newland said before his comments were deleted.

  8. Robin Page 2015.02.09

    This legislation is very much needed! Recently one of my disabled adult children was denied subsized housing because he had been arrested for a felony. The charge was dismissed. The case never went before a grand jury or before a judge. But the Pennington County Housing Authority was trying to use his arrest as grounds to deny him disabled housing assistance. Of course, I fought back for my son!!! We had to get a "stamped and sealed" document that showed the charge was dismissed. We took this to an "Administrative Review" and they had no choice but to allow him into housing. I noticed during the hearing that they were relying solely on a police report, which did not follow the case after the arrest. Had they done a background check with the Court records office, Pennington County would have known this charge was dismissed. They didn't want to use the Court record because it was "too expensive". We will be following up and asking for this charge to be expunged. How many other people have had their rights denied for having a dismissed charge on a government record used against them for any type of job, housing, etc.? This is a serious violation of civil rights! Did you know that South Dakota is one of the few states where a juvenile record is not automatically closed at the age of 18 or 21? This also requires the youth to ask for it to be closed. (Get a lawyer kid, because you can't just write a letter asking for your juvenile record to be closed!) A person's innocence must be respected if we are to have a fair and just legal system.

  9. bearcreekbat 2015.02.09

    Robin, police reports are notoriously unreliable. Even our very conservative SCOTUS refuses to allow district court judges to rely on police reports (unless the defendant admits to their accuracy when pleading guilty) when trying to determine whether someone has been previously convicted of a crime of violence needed to enhance a sentence.

  10. mike from iowa 2015.02.09

    Aren't credit reports notoriously inaccurate and hard to get changed to reflect true circumstances? They are used to deny or limit vehicle insurance among other things.

  11. grudznick 2015.02.09

    Got a bad score, dontcha, Mike from Iowa?

  12. mike from iowa 2015.02.09

    No,Grudz. I got taters. Lots and lots of taters. I have never checked my credit score. I will never check my credit score. I don't believe anyone should arbitrarily make credit ratings. It isn't anyone's business what your credit rating is. Mine is just fine with my bank. That is all I care about. Except taters. Lots and lots of taters.

  13. bearcreekbat 2015.02.09

    Me too mfi - never checked and don't plan to check!

  14. grudznick 2015.02.09

    Always check your tater supply. Don't trust them to the government. I'm just sayin...

  15. mike from iowa 2015.02.09

    I do know that any wrong info on your credit report can mess up your picnic worse than red ants. My taters are safely ensconced in a root cellar where they stay cool in the summer and warm enough in the winter.

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