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.

16 comments

You know, for being a conservative verging on Libertarian, Rep. Dan Kaiser (R-3/Aberdeen) sure likes proposing laws. He's prime sponsor of seven bills in the hopper so far (and he has until Tuesday to come up with more!). But sometimes you've got to pass laws to protect liberty.

One of Rep. Kaiser's bills, House Bill 1134, rights a wrong discussed on this blog and highlighted by the South Dakota Supreme Court last fall. HB 1134 would remove the clause under which Beadle County state's attorney Michael Moore and Attorney General Marty Jackley were able to punish attorney Brandon Taliaferro (pronounced /TOL - li - ver/) for challenging abuses of Native American children in the foster care system. The state presented no evidence that Taliaferro had committed any of the crimes for which it arrested him, but one niggling statute allowed prosecutor Moore to block Taliaferro's request to expunge the arrest record and allow him to practice law and go about his business without further impact from the bogus charges Moore brought. The South Dakota Supreme Court recognized Moore's action unjustly harmed Taliaferro but said the law is the law and dismissed Taliaferro's effort to win expungement.

Rep. Kaiser now seeks to erase prosecutors' authority to block expungement of arrests. As Bob Mercer points out, Rep. Kaiser has the backing of some legal heavy-hitters:

Kaiser is a policeman and his record in the Legislature has tended to be one of protecting people’s personal liberties. His co-sponsors include two retired circuit judges, Rep. Timothy Johns, R-Lead, and Sen. Arthur Rusch, R-Vermillion, and two private attorneys, Rep. Lee Schoenbeck, R-Watertown, and Rep. Steven Haugaard, R-Sioux Falls [Bob Mercer, "Supreme Court: 'We Recognize This Is a Harsh Result'," Pure Pierre Politics, 2015.01.29].

As always, Mercer chooses his words carefully, but he appears to agree that the state treated Taliaferro poorly and that those poor treaters deserve some scrutiny:

The bill was assigned to the House Judiciary Committee; a hearing hasn’t been scheduled yet. The Tailaferro indictment looked, from the outside, to have been a strange chapter in law enforcement in South Dakota. Now the matter and the actions of the various sides will receive further light, to a degree they previously hadn’t, before the Legislature [Mercer, 2015.01.29].

HB 1134 won't restore Taliaferro, but it will protect innocent citizens like him from future abuses of prosecutorial power. Stay tuned for the House Judiciary hearing: we'll see if Attorney General Marty Jackley can defend this prosecutorial veto power over the expungement of their own erroneous persecutions before the Legislature the way he did before the Supreme Court.

15 comments

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.

15 comments

Support Your Local Blogger!

  • Click the Tip Jar to send your donation to the Madville Times via PayPal, and support local alternative news and commentary!

South Dakota Political Blogs

Greater SD Blogosphere

SD Mostly Political Mix

Greater SD Blogosphere

  • SleuthSayers
    Countdown to the Anthony Best Anthology Award: Anthony Award NomineesBest Anthology or CollectionBouchercon 2020The Eyes of Texas: Private Eyes from the Panhandle to the Piney Woods, edited by Michael Bracken (Down & Out Books)¡Pa’que Tu Lo Se…
    2020.10.19

  • Idle Hands Dep't
    Geography Div ( Arrrgh!! subsection): I obviously missed National Talk Like a Pirate Day. Oh well.Here courtesy of Atlas Obscura is a seventeenth century map and article about the Dutch rooting out a nest of the brigands.…
    2020.10.19

  • Rant-a-Bit by Scott Hudson
    The Ledge #447: Covers: On one of my laptops I have a folder where I toss in any cover versions that I think could possibly include in a Ledge episode. Once that folder has a sufficient number of songs I know it's time…
    2020.10.16

  • LivingNonviolence
    Plastic:  Every now and then we make an excursion after dinner for a hot fudge sundae. We get the small size, which has gotten smaller as the plastic cup gets squeezed and shaped toward the bottom. It makes no…
    2020.10.16

  • Mark Haugen
    Some notes, quotes and anecdotes:: *** Wifey and I are watching the Netflix series "Fauda." It's very good - kind of an Israeli "24." Fauda, which means "chaos" in Arabic, was developed by Avi Issacha…
    2020.10.11

  • Native Hope Blog
    September Hope Report: All relatives living on Unci Maka (Grandmother Earth) continue to endure the effects of COVID-19. On reservations, many do so on slim resources. We continue to assist those in need with groceries, cle…
    2020.10.11

  • Teaching and Inspiring Math Educators (TIME)
    A New Normal:  Before the fall semester began, I was very apprehensive about how it would go. I was worried about contracting COVID-19 and how that would affect my family. I was dreading wearing a mask, having to u…
    2020.09.25

  • The Poetry of Barry G. Wick
    Limericks with an Edge:  Limericks with an EdgeThere now is a man named TrumpWho sent us into a slumpHe killed off a bunchWhile eating his lunchAnd slapping his whore on the rumpKing Trump rules nobodies with glee."Ther…
    2020.09.24

  • A Teacher's Writes
    Connecting A Confederacy of Dunces to its reference: I began John Kennedy Toole’s A Confederacy of Dunces recently and while I haven’t cracked it this week, I plan to finish it. It has fallen somewhat victim to my habit of reading handfuls of books at a…
    2020.09.22

  • Notes from a Western Life
    Book Remarks: Mystic Travelers by Gail Crane: With Mystic Travelers: Images from the Edge, the reader receives not only a book but an invitation to join these two Mystic travelers on adventures to the edge of the world we know through Facebook an…
    2020.09.15

Madville Monthly

Meta