Amicus lector

A blog on criminal justice in South Dakota from Argus Leader Media reporter John Hult

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Dismiss or don't dismiss? Jury selection an inexact science.

For the first time in seven years, Minnehaha County is selecting a jury to decide if a murderer should live or die.

I’m speaking, of course, of James McVay, the one-time worshipper of Satan, would-be assassin and repeat felon who broke into a Sioux Falls woman’s home, slashed her throat and stole her car just days after his release from segregated confinement at the South Dakota State Penitentiary.

McVay pleaded guilty but mentally ill to first-degree murder in Dec. 2011. 

My guess is that none of the hundreds of people called as potential jurors, whose names were pulled from voter rolls and driver’s registration records, relish the opportunity to decide whether a person should live or die. One would hope, anyway.

As Judge Peter Lieberman said yesterday, however, a mere squeamishness at the thought of issuing a death sentence is not enough to get one out of jury service in the case.

There are some things that will get a person booted from a jury in Minnehaha County, though. Most of them have nothing to do with the idea that the McVay case is a death case.

Jury duty is part of our jobs as citizens, so people are expected to serve, but in my experience, judges and lawyers in Sioux Falls tend to aim for people who can be impartial, thoughtful and attentive during trial.

Note: None of the following is meant to serve as an instruction on how to get out of jury duty. What follows are simply a series of observations from a part of the criminal process that normally gets little media coverage.

Have a sick wife/husband/child at home who needs frequent medical attention? Does this wife/husband/child have a series of doctor’s appointments coming up? Are you the only one who can provide the transportation there?

That’s usually ground for dismissal. It’s hard to give your full attention to jury service if you’re worried that your loved one might hurt themselves without you there.

Some job-related stuff can get you dismissed, as well, particularly if the jury service will be long. Two teachers were dismissed yesterday because they were concerned about sticking their students with substitutes for two to three weeks.

A middle school teacher said some of her eighth graders were taking high school courses and needed help preparing for tests. A kindergarten teacher said she was worried about maintaining order in her class if the youngsters were volleyed from sub to sub for that long.

Both teachers were dismissed.

Another woman was dismissed for school-related issues. She’s a pre-nursing student who watches her kid part time and needs to maintain a C average to be considered for her nursing program.

If she were thinking of all those responsibilities, she wouldn’t be thinking of the trial, the judge said.

A single mother of six just starting an after-school job? That wasn’t quite enough, although the mother eventually was dismissed.

Prosecutors asked about gory photos and asked potential jurors if seeing them would unfairly prejudice their decision by stirring emotion. The woman said she was a past victim of domestic violence and that she’d have a hard time weighing evidence that involved violence to a woman.

Being busy and important at work alone is not enough, though. One guy told the lawyers that he’s part-owner in a business, that there are projects coming up, and that his co-workers rely on him.

“Wouldn’t that be true in any trial?” the judge asked.

Sure, he said, but this one will be really long. Eventually, he was excused for cause anyway. He said his religious beliefs would keep him from considering a sentence of death.

Judge Lieberman told jurors that those selected to serve would need to be at least open to considering both options for McVay's sentence: Life in prison or death by lethal injection.

A handful of other questions came up, too. Does anyone have a personal connection to mental illness? What about drug use/abuse (McVay induced hallucinations with alcohol and cough syrup)? Plenty of jurors talked about personal connections, but none were dismissed.

The Wednesday dismissals that we know about came during the group questioning in the morning and early afternoon. Surely more jurors were released on Wednesday during individual voir dire, a closed interview designed to allow even more prying and personal questions about potential biases.

Jury selection in McVay’s case is expected to take at least two weeks, perhaps longer. Death cases always are difficult, as the weight of the decision is so intense.

At least in this case, jurors won’t need screening for potential biases about the defendant’s triple-minority status. The last death case involved Daphne Wright, a woman who is gay, black and deaf. Potential jurors in that case, as you might imagine, were subjected to a plethora of personal questions about their own prejudices and moral stances.

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Is violent crime 'soaring' in Sioux Falls?

Sioux Falls makes a lot of lists.

Lists about the best cities for businesses or “Best Places To Live” or “Best Mid-Sized Cities to Move To” are frequently populated by places like Sioux Falls.

Well, we made another list recently for a not-so-pleasant reason. The business news site 24/7 Wall Street put Sioux Falls at number seven on its list of cities with the highest growth in violent crime per capita in this article.

Now, let’s be clear about what the list says and what it doesn’t: Sioux Falls’ appearance on the list doesn’t mean that we had the seventh-highest increase in violent crime among metropolitan areas.

It also doesn’t mean we had the most murders, most assaults or most rapes (all classified as violent crimes by the Federal Bureau of Investigation). What it does mean is that among metro areas whose borders did not change between 2007 and 2012 and reported consistently to the FBI’s Uniform Crime Report, we had the seventh-largest jump in violent crime.

It’s a big jump, there’s no doubt about it. We’ve written some about this at the Argus Leader. The same FBI numbers used to compile 24/7’s list had violent assaults rising 128 percent between 2005 and 2012 in this story by Mark Walker.

We’ve also written a lot about the strain that crime is putting on the Minnehaha County Jail. Here’s Sheriff Mike Milstead talking about the future.

I hadn’t seen Sioux Falls specifically on a list like this until the Sioux Falls Business Journal's Jodi Schwan sent out the link last night.

The reporters note that some of the cities on the crime list – Sioux Falls among them – have seen rapid population and job growth alongside the increase in crime.

That’s the point Sioux Falls Police Chief Doug Barthel takes away from the numbers. Sioux Falls adds 3,000 to 4,000 people a year, and “when people move into your city, some of them are going to commit crimes,” Barthel said.

“Given the fact that our city is growing the way it is, I’m not alarmed by the numbers,” he said. “If we had a stagnant population and we saw numbers like that, I’d be more concerned.”

Walker’s story from December notes that a change in state law re-defining domestic aggravated assault makes a difference in the numbers. The 2012 shift makes assault by strangulation a felony. In the past, the same behavior was classified as misdemeanor assault.

That wouldn’t have made a difference in the 2007-2012 numbers, but it will in the future. Crimes like domestic assault, which Barthel says cut across income groups, are difficult to prevent.

“We can’t put a police officer in every house where there’s an ongoing domestic situation,” he said.

Barthel does take issue with 24/7’s use of the word “soaring” to describe the crime rate. The chief thinks that’s an unfair characterization of what’s happening here.

“The good things that are happening in our city because of the growth far outweigh the bad,” he said.

For those of you who don’t want to bother with the link from 24/7 (which is full of interesting lists, you’d find), here’s the list of cities. The number after each is the percentage increase in violent crime for 2007-2012

10. Lewiston, Idaho/Wash.: 44.5 percent

9. Appleton, Wisc.: 46.1 percent

8. Bangor, Maine: 46.8 percent

7. Sioux Falls, S.D.: 49.7 percent

6. Morgantown, W. Va.: 50.8 percent

5. Redding, Cali.: 53.8 percent

4. Hanford-Corcoran, Cali.: 65.3 percent

3. Wheeling, W. Va.: 67.7 percent

2. Columbus, Ind.: 70.1

1. Odessa, Texas: 75.5 percent

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How many of those Sioux City speeding tickets go to South Dakota? Sioux City doesn't know.

So far today, the most-read story on the Argus Leader website is this one, about an attempt to limit Sioux City's ability to collect fines from South Dakota residents accused of speeding through the border city.

Some South Dakotans feel they’ve been targeted, and they’ve felt that way for a long time.

One reader had called me to talk about the cameras in October. He said he was pretty sure that the majority of the people caught speeding by Sioux City’s Interstate 29 cameras are from South Dakota.

It’s not an outlandish assumption. The speed limit is lower in Iowa. People in Iowa are accustomed to driving at Iowa speeds. South Dakotans are accustomed to driving at South Dakota speeds.

Unfortunately, I learned, there’s not a simple way to find out how many of the people who get the tickets are from South Dakota. Or Iowa. Or from anywhere else for that matter.

Shortly after my conversation with the driver in October, I sent the SCPD a public records request asking for a full list of all those cited by an automated camera, including their names and addresses and the location of the violations.

Shortly thereafter, I got a response from Lt. Mark Kirkpatrick.

He couldn't really tell me what I wanted to know, and here's why: First off, the department doesn’t track and compile the states to which the citations are sent. The city’s provider, Redflex traffic systems, maintains the addresses and violations.

The tickets are civil in nature, Kirkpatrick said, meaning they’d need to redact personally identifying information from each citation. Doing that would require officers to print out and scrub individual records, which the Lieutenant said they could do at a rate of 100 tickets per day.

With 39,000 tickets in 2012 alone, he wrote, we’d be looking at 3,000 hours of research at $40 an hour.

“As you can see the request, as made, is probably not a feasible option,” he wrote in October.

I called Kirkpatrick back today to see if there might be an easier way to find out where the money was coming from. Considering that an aide to Governor Daugaard accused Sioux City of targeting South Dakotans (a term the aide later said he wished he hadn’t used), it seems like a number relevant to the debate about data-sharing between state that’s been ignited by House Bill 1122.

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Don’t feed weed to your pets

I got a curious email this morning about my cat.

Well, not exactly about my cat, but my cat was kind of responsible.

You see, I’ve taken Cassie to Dale Animal Hospital a few times since picking her up from the shelter two years ago, which means I sometimes get informational emails from the vet.

Today, I got one with a subject line “Marijuana Toxicity In Pets.”

I assume - or at least I hope - that they sent this to everyone on their email list.

Anyway, the email contained a link to this blog post, which is, predictably enough, about the effect of marijuana on critters.

The idea here is that decriminalization and legalization for medical purposes has de-stigmatized and expanded marijuana use. As that happens, pet owners should know what effect the drug can have on their furry friends and guard their stash accordingly.

Here’s the gist: It’s a bad idea to give your pets pot. They’re smaller than you, their reactions are more intense, and there’s nothing to show that pot has any medicinal value for Pookie the poodle.

This might seem kind of silly on first blush, but there were some interesting stats in the post to explain why this matters:

“The Pet Poison Hotline has reported a 200% increase, over a five year period, in calls asking about marijuana and pets. California and Colorado both passed legislation to legalize medical marijuana usage. At the University of California, Davis, Veterinary Medicine Teaching Hospital there were four cases of marijuana toxicity in 2010, but there were 27 cases in 2013. Two Colorado veterinary hospitals reported a four-fold increase over the last six years, and this was before marijuana became legal. All but two of these cases lived; two dogs who ate cannabis butter died. In a 2002 study of 250 cases, 96% of cases occurred in dogs (dogs will eat anything!). In this group there were two fatal cases, one was a cat, and the other a horse.”

Treating pot poisoning isn’t necessarily simple, either. If an animal swallows too much marijuana, they’ll need to swallow activated charcoal every eight hours or so for the first day or two, for example.

This might matter more for pet owners in states where voters have moved to expand access to marijuana than it will for South Dakotans, but it’s timely either way.

That the email went out at all, that veterinarians are thinking about this, is more proof of the far-reaching effects of legalization. Regardless of how anyone feels about pot, there’s no denying that decriminalization will force policymakers, bureaucrats, doctors, school officials, insurance adjusters, bankers, employers and plain, old regular folks to think about things they hadn’t before.

Should failing a drug test for using a legal drug disqualify a person from employment? Should banks loan money to pot shop owners? Growers?

I was just speaking with Attorney General Marty Jackley about a handful of topics yesterday and marijuana came up in that context. Law enforcement officials in states surrounding Colorado, including Jackley, are in “wait and see” mode in terms of the impact that state’s legalization of marijuana will have on trafficking, availability and use in their own backyards.

Colorado and Washington have talked a lot about drugged driving, in hopes of finding a reasonable way to identify and hold accountable stoned drivers.

I must admit, I hadn’t thought much about the potential impact on pets. There are plenty of dogs out there who will happily slurp an unattended beer, jump on tables and clear them of everything even remotely edible or root through trash like a pig in slop.

Cats eat plants. Marijuana was a plant, last I checked.

It only stands to reason that if more people have dried pot, pot plants or pot-laced confections around the house, dogs and cats will swallow more of it.

I’m not sure if Dale Animal Hospital was prompted to write the blog post because they’d treated a stoned animal or because they’d read this article on the danger of weed to animals and thought it was important enough to bring up.

Either way, it was more interesting than another email reminder that Cassie needs a checkup.

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It’s consumer protection week, everybody!

We media types got an email yesterday from the Attorney General’s office informing us that it was once again National Consumer Protection Week.

You probably had no idea. I bet it totally slipped your mind. I bet you bought exactly zero gifts for the occasion, and that you have nothing to wear for this weekend’s National Consumer Protection Week cocktail parties.

Shame on you.

In seriousness, though: The week is a reason to talk about an issue that never goes away. Consumers get ripped off every day in more ways than anyone has time to present in a single blog post. Credit card companies charge erroneous fees, debt collectors break laws during phone calls, shady dealers of goods and services attempt to enforce shady contracts, and so on.

In South Dakota, the Attorney General’s office is the enforcement agency that handles these complaints, and they’re incredibly busy. Last year, the consumer protection division fielded 30,677 complaints through telephone calls, emails and letters.

How many people are handling those complaints? Not many.

Every year during legislative budget hearings, Attorney General Marty Jackley gives lawmakers a rundown of the division's personnel that goes like so: There are six investigators - who are not sworn law enforcement officers - one intake person to take and sort the initial complaints and one deputy attorney general who prosecutes criminal scammers.

If an investigation is necessary, a DCI agent is pulled in to handle that part of the work, but there is no sworn agent whose primary job is to investigating scams.

Basically, there are eight people working to handle 30,677 consumer complaints.

The other interesting number in Jackley’s Monday press release is this one: $9,446,810. That’s the amount of money recovered by the consumer protection division last year.

It’s a pretty big number, but there are some caveats. More than half came in as part of multi-state settlements.

That means that the state is part of a multi-state lawsuit or complaint, a company pays up, and the AG’s office distributes the money. Some of it goes to consumer protection education or some other specified purpose, but a good portion of it goes to consumers.

The other half of the recoveries still represents a pretty large number: $4,585,550. That’s money recovered by the AG’s office for consumers in and outside of South Dakota. That could be money recovered for a South Dakotan from an out-of-state business or money recovered on behalf of an out-of-stater who did business with a South Dakota company, according to AG spokesperson Sara Rabern.

Rabern spent seven years as an investigator, she said, and she explained that a good portion of an investigator’s work involves mediation and call routing.

You see, a lot of people who don’t understand why they’ve been charged a particular fee or feel they’ve been ripped off simply don’t have the right number to call. Sometimes people call a company’s consumer line and fail repeatedly to be connected with someone who can help them.

Investigators, Rabern said, generally know exactly who to call, particularly if the company against whom a complaint is filed is a large and reputable one. The investigator calls up the company, says “hey, this is the South Dakota Attorney General’s office and we’d like to ask you about this.”

Normally, she said, reputable companies would rather get to the bottom of a consumer complaint and deal with someone’s problem than scrap with a statewide law enforcement agency.

If there’s a pattern of ripoffs, there’s a possibility of a criminal investigation or a larger enforcement action, Rabern said, but most of the daily work at the CP division involves mediation on behalf of individual consumers.

If you want to get ahold of the consumer protection division, you’ll want to dial 1-800-300-1986 or email [email protected]. You could also visit the site at http://atg.sd.gov/Consumers.aspx for more information on protecting yourself.

It’s also notable here that Jackley is pushing a series of laws to strengthen consumer protection this session after a series of meetings with a task force through 2013. For more on those proposals, look here.

Here’s a breakdown of last year’s multi-state settlement numbers, again from Rabern:

Lender Processing Service (LPS) mortgage lending case: $ 344,750.00

Harms & MG Oil: $ 78,500.00 (total for both companies)

GlaxoSmithKline (Avandia) unlawfully promoted the diabetic drug: $1,203,083.00

1st Choice Sales & Marketing – timeshare out of Sioux Falls: $19,304.00

Pfizer – (Zyvox & Lyrica)   off-label marketing: $627,435.00

Janssen (Risperdal) improperly marketed the antipsychotic drug: $2,588.188.00

TOTAL MULTI-STATE: $4,861,260.00

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What the Ally murder trial tells us about toddler death cases

The murder trial of Congolese refugee Managabe Ally this week followed a familiar script.

Prosecutors blamed Ally, the last adult alone with 18-month-old Merveil Kasangu, for the child's death. Kasangu died from blunt force trauma on Christmas Day in 2012.

Ally says Kasangu fell off an adult bed on Christmas Eve. From the moment police and EMTs arrived that day, Ally has maintained that he doesn't know exactly how the injuries happened (he wasn't in the room when the child fell, he says).

A jury decided yesterday that Ally was not guilty of the most egregious charges filed against him – first- and second-degree murder. They did, however, convict him on four counts of manslaughter.

The manslaughter conviction carries a sentence of up to life in prison. Murder would have brought an automatic sentence of life without parole.

Essentially, the jury decided that Ally did cause the child's death, but that there was no premeditation (an element of first-degree murder) and that his behavior - whatever it was - didn't show evidence of a depraved mind (an element of second-degree murder).

The nearest parallel in Minnehaha County is the case of Christopher Brian Fisher. Fisher, like Ally, was the boyfriend of the victim’s mother. He was left alone with the child, a 15-month-old named Preston Vensand, the night before Thanksgiving in 2008.

Fisher found the boy unresponsive that morning.

Like Ally, Fisher’s theory of the victim’s fatal abusive head trauma involved a fall: Fisher said the child fell in the bathtub the night before.

Like Ally, he accused Sioux Falls police detectives of pushiness, saying they refused to believe his story through hours of questioning.

Unlike Ally, Fisher did admit to shaking the child after that questioning, changing his story multiple times. Ally’s story remained fairly consistent from the start (there were some variations in his explanations about when he did the dishes before hearing Kasangu scream and the location where the boy was found, but no huge diversions).

There’s a familiar character in both trials: Dr. Janice Ophoven, the former Hennepin County Coroner who now consults for defense teams in “shaken baby” or abusive head trauma cases. She testified in both cases, reviewing autopsy results and relaying her findings to judges and juries. She’s testified in several other cases in Minnehaha County, as well.

Ophoven doesn’t believe in “shaken baby syndrome.” The science doesn’t support the diagnosis, she says. She also tends to find numerous explanations for head trauma that could explain what police generally see as clear signs of battery.

Ophoven’s testimony led to the tossing of murder charges against a man named Dustin Two Bulls in 2011, after a judge ruled that the medical evidence did not clearly support the prosecution’s version of events in the death of Deryun Wilson.

Ophoven is not alone in her belief that the “shaken baby” diagnosis unfairly points fingers at the last caregiver of a child: Dozens of convictions have been overturned in recent years.

All of this is to say that cases of a toddler death involving abusive head trauma are hard to make for prosecutors, especially if there are no witnesses or confessions.

A lot of the same issues are sure to present themselves in the fall, when Joseph Patterson goes on trial for the death of Tyrese Robert Ruffin in October.

Patterson was the live-in boyfriend of the boy, who happened to be the child of NFL star Adrian Peterson (who met Ruffin while the boy was on life support), and was the only one in the apartment when the child stopped breathing.

Patterson’s lawyer said his client admitted to nothing during a bond hearing last year. There was a sugary substance on the boy’s lips, he said, supporting a theory of possible choking.

Will a jury accept an alterative theory in that case? Is a manslaughter conviction – which leaves open the possibility of parole – be more a more likely outcome?

We'll have to wait and see. Here's something you can bank on: Ally's conviction will be appealed. Fisher's was, unsuccessfully. 

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Are South Dakotans bad in bed? Not exactly

We’re going to take a slight diversion from crime today and talk about technology and sex.

By way of explanation, let’s start here: In the twitter age, mapping things state-by-state is an incredibly valuable media tool. Coloring states with data on everything from income inequality or crime rates to highest-paid public official makes for irresistible click bait.

On more than one occasion, I’ve covered a crime story sparked by a map like this one, which says we rank last in protections for victims of sex trafficking.

Earlier today, I noticed a map from Jezebel with the same word in the title and nowhere near the same importance.

The map ranks states based on the average amount of time it takes couples to complete the act of intercourse – foreplay excluded.

The good people at Jezebel took data from 10,000 users of an iPhone and Android app called “Spreadsheets,” generously supplied by the developer, to rank each state.

Sex, a snazzy map and data: A click bait trifecta.

I noticed another familiar map feature right away: South Dakota was near the bottom. Second to last, in fact, with an average of one minute, thirty seconds per session.Only Alaskans fared worse (if we’re using the longer = better standard). The winning state was New Mexico, with an average of seven minutes, one second.

So here was my first thought: How many of the 10,000 app users, whose experiences are responsible for our awful ranking, are South Dakotans?

So I asked Danny Wax, the app designer who spoke with Jezebel.

Here’s his response:

“Our analytics show five logged sessions. Could be same couple … Or five couples logging one each. We have to get a larger presence in SD!!”

So there you have it. Five sessions. No telling what our stats would be if the prairie had as many sex-time trackers as pedometer users.

I suppose one could speculate that South Dakotans are a more private lot than most, that we don’t want or need to log our sexual endurance with a semi-social phone app.

But that wouldn’t explain why Nebraskans are so far ahead of us: They’re at number 9.

Minnesotans aren’t known as outlandish over-sharing types, but they’ve got 49 seconds on us.

And West Virginia at number 2? Seriously? 

The idea is that you use the app with your partner, playfully, as the program lets users log achievements. Wax also told Jezebel the app could be a conversation starter in the post-coital moments.

Which I guess would mean a conversation where both parties are looking at their phones and not each other. I’m pretty sure that’s a thing that happens anyway.

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Do you remember Jason Hall? The judge who sentenced his killer didn't.

Even in a record year for homicides in Sioux Falls, the death of Jason Hall stood out.

Hall, one of seven homicide victims in 2010, died two days after a beating from his best friend.

That friend, Burton Leroy Eagle Hawk, wasn’t just a lifelong buddy – he was essentially a family member. Eagle Hawk has children with Hall’s sister.

Hall died days after the beating, and Eagle Hawk ultimately got a three-year sentence for second-degree manslaughter. He was released in August, but is now facing felony drug possession charges and was in court today asking for a reduced bond.

Hall’s case doesn’t stand out for everyone. Today in court, Judge Joseph Neiles struggled to recall the details of the manslaughter, even though he was the one who gave Eagle Hawk the sentence.

“It’s a sad commentary on the high volume of cases we do that I don’t recall the case,” Neiles said.

I wouldn’t hold this against Neiles. He hears hundreds of criminal cases every year, plenty of which are incredibly tragic, and a good number of which involve family members and friends doing terrible things to each other. He'd only been handed the Eagle Hawk drug file moments before the bond hearing and hadn't had much time to review it. 

The prosecutor didn’t remember the details, either (he wasn’t working for the Minnehaha County State’s Attorney’s Office in 2010).

Neither did the defense lawyer, Julie Hofer, who didn’t represent Eagle Hawk in 2010 and had to turn and ask him for a rundown of the manslaughter case when Neiles asked her about it.

My guess is that most readers don’t remember much about the case, either. Remember, there were seven homicides in 2010. I remember it because I met some of the people involved and I still see them around town. Even so, I missed Eagle Hawk’s name the first time it appeared on the court calendar last month, too.

Here’s the story we ran in 2010 after Eagle Hawk was indicted for manslaughter.

  Deadly fight ends lifelong friendship

By John Hult

On Aug. 19, lifelong friends Burton Eagle Hawk Jr. and Jason Hall spent most of the day drinking and having a good time.

At some point in the evening, however, the 26-year-olds began to argue. The argument led to blows, and when the fight was over, Hall was beaten bloody and lying unconscious in the street. He died of his injuries two days later.

Now, a grand jury has indicted Eagle Hawk on three counts of manslaughter, and friends and family are trying to understand how a close friendship could end so tragically.

The fight occurred about 6 p.m. as the men walked along 16th Street. Neighbors called 911, and Hall was found near the intersection of Duluth Avenue.

Eagle Hawk was arrested on charges of aggravated assault within minutes. He'd fled only about two blocks - to Hall's house, where police found him.

Hall's mother, Lenor Gary, wishes she understood how it all happened. Eagle Hawk wasn't only Hall's best friend. He is the father of two of her grandchildren.

She doesn't even know what the fight was about.

"Nobody knows," she said. "All we know is that they were arguing."

At 4 p.m. Aug. 21, doctors at Sanford USD Medical Center told her that her son was brain dead, and she began to call his friends in to say their goodbyes. At 10 p.m., he was taken off life support.

Hall's death certificate lists the cause of death as blunt head trauma with brain hemorrhaging aggravated by alcohol in the blood.

Gary now is struggling to come to grips with the bitter realities of the loss to her family. Hall has four young children, ranging in age from 5 months to 3 years.

"It's hard to explain to them that Daddy's never coming back," she said.

Justin Thoreson, a friend to both men, said the incident is tragic on too many levels. The families had known each other since childhood.

"Burt's mom helped raised Jason, too," Thoreson said.

He remembers Hall the way his mother and many friends do - as a man who loved art and poetry, who took care of his children and made everyone laugh. Gary said her son would play mediator when fights broke out.

Eagle Hawk isn't exactly a mediator, Thoreson said, but he wouldn't call him a killer and can't imagine what went through his mind when he heard the news of Hall's death.

"He's not the type of person who'd ever wanna kill someone," he said. "They were just drunk, they got in a fight, and it got out of hand."

Gary doesn't know how she'll put the incident behind her. Friends wrote Hall's name in black chalk on the steps leading to her house a few days ago.

She wants to know why Eagle Hawk beat her son so badly. She doesn't know what she'd say to him if she saw him again.

"I've been asking myself that - can I forgive him? He is the father of two of my grandchildren," she said. "I don't know if I can."

Reach reporter John Hult at 331-2301.

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Child sexual abuse: Stranger danger vs. the trusted friend

Jeff Nolte, a former Canton city commissioner and currently-suspended Oldham-Ramona math teacher, was indicted this week for the alleged rape of an 8-year-old.

Before that, he'd been a proud advocate for foster parenting and adoption. He and his wife told Argus Leader reporter Beth Wischmeyer in 2012 that they’d taken care of 11 foster children beyond their own four adopted children.

He’s not a foster father any longer. This morning, I got an email confirming as much from Kristin Kellar, the spokesperson for the state Department of Social Services.

The last time Nolte cared for a child as a foster parent was December of 2011, Kellar wrote, when he had a child for five days on an emergency basis. The family had cared for a total of nine children since becoming licensed with the state in 2006.

Their license was revoked on Jan. 10, 2014, which was the first business day after his arrest on rape charges.

Lincoln County State’s Attorney Tom Wollman could not elaborate on the incidents in Canton that led to the charges or the relationship between Nolte and his victim, confirming only that the victim was not a student.

There’s a sad coda to this story, which dovetailed with the South Dakota Senate’s passage of a bill to create a task force on child sexual abuse: Nolte’s is another case involving a defendant trusted by the victim.

It’s important to note that Mr. Nolte is presumed innocent. We’re only in the beginning stages of the proceedings against him. Nothing has been proven. Because there is no affidavit or police report in the criminal file, we don’t know any details. We don't know who said what about him, and we don’t know if Nolte made incriminating statements or denials.

There are plenty of examples of cases involving trusted defendants who were found guilty: Ted Klaudt, a former state legislator, is serving a 44-year sentence for molesting two of his foster daughters.

Nick Jastorff, a former Sioux Falls School District teacher, is serving a 45-year sentence for rape involving two girls who’d been students at Patrick Henry Middle School.

Jastorff and Klaudt stand out because they were relatively prominent defendants. More common are cases that don’t involve teachers or elected officials. I see indictments in Minnehaha County involving abuse by a family member on a distressingly regular basis. 

Most abuse victims know their abuser. Holly Strand, a forensic interviewer from Rapid City told legislators during the debate on the Jolene’s Law bill that she’d interviewed 925 abuse victims over the years. Of those, only six were targeted by strangers.

Schools and parents still teach “stranger danger” to children, Strand said, but those lessons gloss over the most frequent dangers children face.

Ironically, after listening to the committee hearing on that bill, I switched over to the Senate Judiciary Committee, where they were debating a bill that would disallow registered sex offenders from loitering in public libraries. That bill coasted to passage, with support from law enforcement, prosecutors and librarians.

This is not to say that there aren’t bad actors who target children. Testimony on the loitering bill included talk of real cases where sex offenders had harassed library patrons.

The notion that strangers in white vans will snatch up our children is more dramatic and frightening than the reality faced by the majority of abuse survivors, however.

It’s also easier to live with on a day-to-day basis. It puts the blame for child rape on random, lollipop-holding boogeymen who swoop in to victimize the vulnerable and paints a nightmarish picture of abuse that we feel comfortable looking at largely because we can so easily paint ourselves out of it.

It’s much harder to walk through our days knowing that one in four girls and one in six boys are molested by age 18, and that most of them are hurt by people we’ve placed our trust in.

[jhult-blog]

Bill would stop minors from buying e-cigs

South Dakota is sometimes known as a state that lags behind in regulations concerning new technology.

We’re still debating a prohibition on texting and driving now, long after most states have banned the practice. We were also one of the last states to lower the blood alcohol content for DUI charges from .10 to .08 and resisted seatbelt laws for years.

That might not be the case for e-cigarette regulations. Sen. Dan Lederman, R-Dakota Dunes, is pushing legislation that would ban the sale of “alternative nicotine products” to anyone under the age of 18.

That would include any product that produces inhalable nicotine vapor. We commonly call them “e-cigarettes,” and they’re sold at gas stations, drug stores and other retailers under names such as Blu, NJOY, V2 and a host of others (full disclosure: I switched from regular cigs to e-cigs last year).

Lederman’s bill would also ban kids from owning, using or buying e-cigarettes. South Dakota would join at least 20 states with similar restrictions.

Most e-cigarette packages explicitly state that the products aren’t to be sold to minors, and the two e-cig retailers in Sioux Falls have “no sales to minors” rules of their own.

Lederman’s bill would make those prohibitions explicit. That's a regulation supported by a group called the "Consumer Advocates for Smoke-Free Alternatives Association."

What Lederman's bill won’t do is clear the air (see what I did there?) in the debate about the public health virtues or pitfalls of electronic cigarettes, which supporters call essentially harmless but detractors see as a path to a dangerous normalization of nicotine addiction.

For a taste of those arguments, check here, here or here.

Lederman's bill has not appeared in a committee yet.

[jhult-blog]

Robbers go to prison for a long time, right? Well ...

We’ve had a rash of armed robberies this year in Sioux Falls.

Police believe that two men are responsible for at least five of them, and those men were captured about a week ago after the early morning robbery of a Kum and Go station.

This week, however, there was still another armed robbery. This time, the target was the Fireside Lounge and Casino, robbed at gunpoint by two men on Wednesday morning.

The penalty for armed robbery, if you’re caught, is a maximum of 25 years in prison. In reality, most people don’t get a maximum sentence.

To illustrate, let’s talk about Derick Craig Johnson, a 24-year-old Sioux Falls man who picked up a robbery conviction before his 21st birthday.

Johnson and his uncle, Robert Thomas Johnson, age 25, robbed Deuces Casino on 41st Street on July 31, 2009.

The younger Johnson got a 10 year prison sentence, with six years suspended and credit for nearly a half a year served (he was jailed right after police caught him, which was the morning of the robbery).

He didn’t serve all four years. He was paroled on July 26, 2011.

It didn’t take long for him to get in trouble again. He was ticketed for careless driving in Turner County in June, then picked up another felony charge in Sioux Falls the following month.

Derick Johnson is accused of forging two checks, and court documents say he told detectives he found the victim’s checkbook near St. Francis House and used it to write checks in June to Get N Go and Walmart.

Here’s the upshot for Derick: Because of his robbery conviction, he not only faces the prospect of an 10 years in prison for forgery (maximum penalty for a non-felon is five years), but could be sent back to prison immediately to serve his suspended robbery sentence.

His parole agent has the authority to order him back to prison.

They’ll need to catch him first, though. He’s listed as a fugitive on gotwarrants.org, Minnehaha County’s warrant database.

[jhult-blog]

Conversations with a killer

Reporter Steve Young and I each witnessed an execution by lethal injection at the South Dakota State Penitentiary in the space of two weeks in October of 2012. I witnessed Eric Robert's execution, he witnessed Don Moeller's.

We both wrote plenty about the executions and the people who were executed that fall. As you might expect, we talked plenty about the death penalty in the weeks and months that followed.

Last winter, Young mentioned that Charles Rhines, who is now the longest-serving death row inmate in the state, was a frequent letter-writer. Over the years, he’d chimed in on the Argus Leader’s editorial page about everything from inmate rights to Tinky Winky the Teletubby.

“If I were you, I might write him a letter and see if he’d talk,” Young said.

The idea was to see if Mr. Rhines could shed any light on life on South Dakota’s death row, whether two decades there had changed him, and whether he was at all effected by watching three men lead to the execution chamber.

More than 10 months and 100 pages later, we’re publishing two stories about his case, his views and his survivors. The stories come as Rep. Steve Hickey, a Sioux Falls pastor and Republican legislator, prepares to push for a ban on the death penalty. Rhines also ran out of state-level appeals last month, which was the 21st anniversary of his sentence.

Rhines was surprisingly open in his letters. Too open, in fact. Initially, he said he’d only write to me if got editorial approval of the story. Too many times, he wrote, his words had been “cherry-picked” and taken out of context by reporters.

I told him I couldn’t offer him story approval. No one gets that. I told him what I could do was post my questions and his answers on my blog and talk him through parts of the story over the phone if he was worried that I’d misunderstood him or mischaracterized what he’d said.

He wrote that he's too much of an introvert to talk on the phone and that he hadn’t since 1998, but he agreed to answer my questions.

In hindsight, I should have known he’d take the offer as carte blanche to write anything on his mind and that he has more time to write down his thoughts than the average person. Anyone who’d dealt with him in the past could have warned me as much.

We couldn’t justify publishing everything. There was too much, too many accusations about too many people, and it would set a poor precedent.

I wrote last month to tell him we could only post portions of the letters and to give him the anticipated publication date. That date came and went without word from him (the story was held a week for a handful of reasons).

Last week, I hand-delivered a letter to the pentitentiary offering him another opportunity to say no to being quoted. On Thursday night, he called my cell phone.

He wasn't nearly as interested in hearing how I'd used his letters as I'd expected. By the time he called, he'd concluded that I was planning to write whatever I wanted, regardless of his feelings on the matter.

“You’re just going to publish what you’re going to publish,” he said.

Oddly enough, former warden Doug Weber told me nearly the same thing a week before that. Weber didn’t like the idea of posting Rhines’ letters.

I did walk Rhines through the parts of the story where I used his quotes. I also reiterated that a lot of people would say a lot of things about him in the story that he probably wouldn’t like. I said I'd spoken to several of the people connected to the case and could write something without his input if he changed his mind.

At the end of our two conversations (inmate phone calls can only run 20 minutes at a time), I felt he was prepared for what would come.

This was an odd situation to be in, as a reporter. Rhines is a killer, a death row inmate whose actions have forever altered the lives of the people around him, a man periodically in the spotlight for all the wrong reasons. He’s also a person with a unique vantage point on one of the most contentious moral issues facing the public.

I tried to treat him as much like any source as I could, given the restrictions of his living arrangement, the sensitivity of the story and the fact that he’s fighting for his life through appeals.

My hope is that the letters I post here and the stories we publish add something to our understanding of how the death penalty works in South Dakota.

Here are three of the Rhines letters, with slight redaction.

Rhines 03282013 (DP)

Rhines 05062013

[jhult-blog]

What's a Class 5 felon cost? About $16,500 a year

My colleague David Montgomery is in Pierre this month covering the legislative session, and he picked up an interesting bit of data yesterday.

He forwarded me some stats from a “fiscal impact statement” last night, an hour or before Mr. Politics dutifully turned on the State of the Union address. Here’s his blog with SD reactions. to the SOTU.

Some background here: Recall that part of last year’s sweeping criminal justice reforms involved a requirement that lawmakers attach an impact statement to any bill that might increase or decrease the prison population.

The idea is for lawmakers to do some cost-benefit analysis before creating new crimes. The tendency in the past has been for lawmakers to react to a high-profile case or uncomfortable crime statistic by showing up in Pierre and passing a “get tough” law without much regard for whether getting tough actually solves the problem (plenty of studies say incarceration is a high-cost, low-return way to change behavior).

The ripple effect can become costly for counties, which have to pay to hold people in jail, and the state, which pays to hold people in prison.

The reform bill was built on the understanding that alternatives to incarceration can keep people safe and hold offenders accountable for less money.

Anyway, here’s the list of stats that Monty sent. All errors are SIC, he says.

Class 1 Misdemeanor statistics:

The average percentage of people sentenced to jail after being convicted of a Class 1 misdemeanor is 41 percent.

The average jail time served for a Class 1 misdemeanor is 24 days.

The average jail cost per day is $72.30.

The total annual cost for one violator is $1,735.

The total cost for an average of one violator per year over a 10-year period is $17,352.

Class 6 Felony Statistics:

The average percentage of people sentenced to jail after being convicted of a Class 6 Felony is 23%.

The average jail time served for a Class 6 felony is 36 days.

The average jail cost per day is $72.30.

The total jail cost for one violator is $2,603.

The total jail cost for an average of one violator per year over a 10-year period is $26,028.

The average percentage of people sentenced to prison after being convicted of a Class 6 Felony is 30 percent.

The average prison time served is 242 days.

The average prison cost per day is $33.67.

The total annual prison cost for one violator is $8,149.

The total prison cost for an average of one violator per year over a 10-year period is $81,488

 The total annual jail and prison cost is $10,752.

The total jail and prison cost for an average of one violator per year over a 10-year period is $107,516.

Class 5 Felony Statistics

The average percentage of people sentenced to jail after being convicted of a Class 5 Felony is 16 percent.

The average jail time served is 65 days.

The average jail cost per day is $72.30.

The total jail cost for one violator is $4,700.

The total jail cost for an average of violator per year over a 10-year period is $46,995.

The average percentage of people sentenced to prison after being convicted of a Class 5 Felony is 51 percent.

The average prison time served is 632 days.

The average prison cost per day is $32.48

The total annual prison cost for one violator is $11,854.

The total prison cost for an average of one violator per year over a 10-year period is $204,466.

The total annual jail and prison cost is $16,553.

The total jail and prison cost for an average of one violator per year over a 10-year period is $251,461.

Disclaimers:

Misdemeanor days are based on time ordered and not time served. (Time served data is currently unavailable.) 10 year projections are in today’s dollars and are not adjusted for inflation.

[jhult-blog]

Plea deal spares Flandreau a potentially embarrassing trial

Former Flandreau police officer Stephan Nelson pleaded guilty to grand theft last week.

That means there won’t be a trial, at which we’d learn more about the messy operations of the Flandreau Police Department in the months leading up to the Division of Criminal Investigation’s discovery that Nelson had lifted more than $1,400 from the evidence room.

There’s a lot that hasn’t come out. 

In stories for our rural law enforcement series last year and in today’s brief about Nelson’s plea, I’ve referred to a preliminary hearing at which the former officer’s defense lawyer eluded to a loose culture at the FPD.

Chief Michael Eisenbarth and officer Jesse Doyle left along with Nelson. The department spent a good part of last year piecing the department back together.

My guess is that Flandreau's leaders aren't bothered by the fact that there won't be a public trial detailing the specifics of a case they've worked so hard to move on from.

In the interest of filling in some gaps for readers whose interest was piqued by the rural law enforcement series (or perhaps by today’s brief), here’s a transcript of the preliminary hearing I’ve referred to so often.

Enjoy.

Steve Nelson Preliminary Hearing

[jhult-blog]

When a slip on the ice becomes a measure of intelligence

There’s an ugly undercurrent running through the commentary on this story of a Sioux Falls mother who burned herself with boiling water during Monday’s intense cold snap.

You’ve probably noticed it. Maybe you’ve thought it yourself: Danielle Albers did a dumb thing. Plenty of readers went straight to the insult: Danielle Albers is dumb.

Normally, I try not to jump in when comments get ugly. It happens a lot.

I’m a crime reporter, and people love to judge those they read about in crime stories. If I made it my practice to stick up for everyone unfairly slighted in the comments section of one of my stories, I’d spend half my time commenting on comments.

That’s not my job.

This is a different situation. It’s different because this isn’t a crime, and it isn’t just a local story. USA Today’s website ran a version of it, and Albers' video has been viewed and shared tens of thousands of times.

Everywhere the story goes, the ugliness follows.

Let’s make this as clear as possible: This stuff is unfair, short-sighted and downright mean. There’s no room for debate on this.

First things first: Albers slipped on the ice.

If you’re in the Midwest and you’re reading this, you’ve slipped on the ice.

Everyone who walks around here has hit a slippery patch on the sidewalk. Sure, we all try to pay attention to where we’re walking, but everyone – everyone – steps onto some ice they missed from time to time.

Albers didn’t throw the boiling water into the gusting wind. She didn’t overfill a huge pot. I saw the pot. She had about two cups of water in it, maybe a bit more. She wasn’t drunk or high.

She just slipped.

You’ve slipped, I’ve slipped, your mother has slipped. Would you call your mother stupid for falling on the ice on the way to get the mail?

But, but, but, this lady was throwing boiling water! Of course she got hurt! That’s not getting the mail or going to church! That’s dumb, dumb, dumb!

Wrong again.

I noted in the story, media outlets and weather service meteorologists across the country did the same experiment, surely hundreds of times. 

L.A. Times reporter Matt Pearce used twitter search terms to find 50 people who’d hurt themselves doing the boiling water trick.

Why did he get curious? Because he saw a search about the boiling water toss on twitter and saw hundreds of people posting photos and videos. Do the search now. You’ll see plenty.

My guess is that most people weren’t hurt throwing boiling water. A few of us in the newsroom had friends or family members who did it. One woman said she thought about trying it with her own kids after work on Monday.

Was Albers doing something dumb, or was this simply about the law of averages, bad luck and the same simple human carelessness that causes thousands of people to burn their hands on hot pans and plates every year at Thanksgiving?

Consider this: Every year, there are a handful of people killed while deep-frying turkeys. People still fry turkeys, because it’s quick and fried birds are tasty.

Let’s step back and remember what Albers was actually doing: Showing science tricks to her kids.

The boiling water toss was one of several made possible by the ridiculous and historic low temperatures that hit Sioux Falls over the weekend.

Some media outlets were specifically encouraging people to do this sort of thing, and we’re not talking about patently irresponsible organizations, either. Here’s a link from an NPR blog.

Albers said she was trying to be “supermom” and show her boys some of those experiments on one of the only days out of the year – perhaps the only day in several years – on which those experiments could be done right outside her window.

Would you rather she put the kids in front of the television?

What if she’d slipped and fallen at a snow hill? Would she be “dumb” for taking her kids out sledding?

Part of my reaction to the meanness is about my impression of Albers as a person. She and her family were kind and genuine with me, and later with photographers and videographers who showed up at her door to ask about the embarrassing situation.

I wasn't expecting that. When I got there, I felt certain she wouldn’t want to talk about it at all. I wouldn’t want to talk about it.

I’ve slipped on the ice, fallen face-first into the pavement while running, burned myself on hot pans, walked into open doors and stepped on my cat’s tail more times than I care to remember. I chopped off a hunk of my finger while cutting onions a few years ago and ended up in the ER.

I try to be good-natured when my klutziness gets me hurt, but it’s always embarrassing. Luckily, I’ve never been burned as badly as Albers, and I’ve never had a reporter show up at my door to ask about my adventures in absent-mindedness.

Albers talked about what happened to her in part to let people know that the boiling water trick can and does go horribly wrong. Again, she’s not the only person who was hurt. But she wasn’t blaming anyone

Was there some measure of carelessness there? Of course there was. Albers told me so: “It was stupid of me not to make sure there was no ice on the ground,” she said.

Was it kind of funny? Sure. She was laughing at herself during the interview. Most of us laugh when we tell our friends about falling on our butts.

This was an accident, and a pretty horrible one, at that. A mother sustained first- and second-degree burns - in front of her children - while trying to make the best of an awful, freezing afternoon.

That so many people feel comfortable crying “dummy” from afar at someone willing to be open about her mistakes says a lot more about a judgmental public than it ever will about Albers.

[jhult-blog]

Drug dogs, cameras, guns and Jordan LeBeau's money

The Attorney General's Office today announced that the South Dakota Highway Patrol will get a new drug dog.

A trained drug dog doesn't come cheap - this one will cost $8,500. The AG's office also said this week it plans to hand over some cash for drug enforcement to three other agencies: the Belle Forche Police Department, Davison County Sheriff's Office and the Custer County Sheriff's Office.

Custer got $12,800 for digital cameras and  camera kits. Belle Forche got $6,000 for guns. Davison County got $21,500 for video cameras.

Where does all this money come from?

Drug dealers, basically.

I've written plenty about asset forfeiture in the past, so we don't need to go over every detail, but it works like this: if the cops suspect the money or property you have was derived from the sale of illegal narcotics, they can take that money or property before you're convicted.

You can fight the seizure in court, but most people don't.

The reason I'm bringing this up again has to do with a particularly tragic drug case we've been following for weeks now, the murder of Jordan LeBeau.

Police say the 20-year-old was shot and killed in his home by two Watertown teens who'd hoped to steal $100,000 in cash.

For weeks, we didn't know how much money was in the house on North Alaska Avenue. We found out when police filed a search warrant for the home of LeBeau's girlfriend, Faith Rasmussen. In it, detectives said that $88,381.49 in cash, along with marijuana and pills, was found at the scene of the murder. The cops suspect that LeBeau was selling pot for Rasmussen.

This week, the Attorney General's Office filed a civil claim against that cash, explaining that the money was found alongside pot, multiple pills bottles, a pill splitter and a handful of other pieces of drug paraphernalia. All of the cash - aside from $500 in an envelope - was found in his bedroom.

LeBeau's father and the representative of the young man's estate each signed off on the seizure.

The Watertown teens thought they'd get a cut of the cash. Instead, the state gets the money, and some lucky police department will reap the rewards.

Here's a copy of the civil suit.

Jordan LeBeau paperwork

[jhult-blog]

Is a machete a deadly weapon or a dangerous weapon?

On Monday, a man named Derek Arapahoe appeared in court for the first time on aggravated assault charges for an attack involving a machete.

Mr. Arapahoe was defiant on his way to court, shouting “I’m innocent, I’m innocent” as he walked by news crews.

That normally doesn’t happen.

Then again, assaults don’t normally involve machetes. Lt. David McIntire of the Sioux Falls Police Department said the victim was lucky to have escaped more serious injuries in the attack, which allegedly involved Arapahoe and his brother sneaking up on the victim as he neared his girlfriend’s apartment.

There’s one other thing that jumped out about the story, at least to my colleague Steve Young: The charges themselves.

Arapahoe was charged with aggravated assault with a dangerous weapon and aggravated assault with a deadly weapon.

“There’s a difference between a deadly weapon and a dangerous weapon?” Young said.

Nope.

Before we get to why, let's do a little context.

Arapahoe was charged through "alternative counts," which means he's charged for the same crime under two different sections of the law. There's only one punishment for any crime, but alternative counts give prosecutors plenty of ways to obtain convictions. Prosecutors use alternatives in hopes of proving all the elements of at least one count to jury.

There are five ways to commit the crime of aggravated assault in South Dakota: You either threaten someone with a deadly weapon, inflict serious bodily harm, inflict or attempt to inflict harm at all with a dangerous weapon, attempt to inflict or actually inflict serious harm by attacking someone in a manner that disregards the value of human life, or you choke someone by applying pressure to the throat or covering the nose and mouth.

If Arapahoe argues that he didn't hit the victim but prosecutors can prove he was there and had a machete, he can still be convicted. He didn't cause harm, but he put the victim in fear of harm.

Murder works the same way. If you and a friend show up to rob someone with a gun and the one with a gun ends up killing someone, both you and your friend (and perhaps the person who gave you the gun) can be charged with murder under different subsections of the law.

So let’s get back to the deadly vs. dangerous question: Is a machete deadly, or is it dangerous?

It’s both.

The reason Mr. Arapahoe’s charges include both words is that the exact wording of the statute uses both words: Subsection 2 uses dangerous; Subsection 5 uses deadly.

The legal definition of deadly and dangerous, according to Minnehaha County Deputy State’s Attorney Edward Angel, is exactly the same.

Angel sent me an email today with a link to the actual definitions under state law.

(10) "Dangerous weapon" or “deadly weapon,” any firearm, stun gun, knife, or device, instrument, material, or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm