Willard trial begins with prosecution's evidence trail (updated)
Phone, internet and credit card records connect Daniel Willard to the phone used to send out allegedly illegal political robocalls last year. But they may not prove it was Willard who sent the calls.
That evidence dominated the proceedings Tuesday, the first day of Willard's week-long trial for alleged election law violations. Prosecutor Brent Kempema laid out a chain of reports and expert witnesses, demonstrating that Willard's credit card bought the phone at a Sioux Falls Walmart and that an internet address connected to the phone was assigned to Willard's household.
"It's my intent to... explain to you how it is shown that Daniel Willard was one of the parties behind making these phone calls," Kempema told jurors in his opening statement.
But Willard's attorney R. Shawn Tornow tried to poke holes in those connections. Willard's credit card bought the phone — but there's no evidence Willard used the credit card. And internet addresses like the one connected to Willard can change and be used by anyone in the same household.
The state's case, Tornow said, is "based on assumptions based on speculation based on conjecture."
How jurors balance that evidence could decide Willard's fate.
He's accused of sending out robocalls attacking Republican leaders last year. Prosecutors say those robocalls were illegal because they didn't include required disclosures about who paid for those calls and how they could be contacted.
If jurors find Willard guilty, each of his four counts could carry a maximum penalty of one year in a county jail or a $2,000 fine.
The first day of the trial was largely technical, with long discussions about the finer points of cell phone records, bank statements and internet addresses. Things could heat up on Wednesday, when the prosecution calls Gary Dykstra, who allegedly conspired with Willard to send out the calls. Dykstra isn't being charged, having instead agreed to testify for the state.
Even before he took the stand, the two sides were arguing about his credibility.
"Mr. Dykstra's going to come in and day, 'Yeah, he did this, we did this, we sent out these calls,'" Kempema said.
But Tornow said Dykstra wasn't a credible witness. He already lied under oath once, when he denied involvement to the grand jury investigating the case, Tornow said.
"At what point after one interview or one testimony under oath... do we say, maybe we can't trust this guy?" Tornow said.
"I am not going to stand here and tell you that Mr. Dykstra is a saint, by any means," said Kempema.
And depending on how Dykstra's testimony goes, Kempema might call to the stand an alleged third conspirator in the robocalls with a much higher profile — Stace Nelson. Nelson is a state legislator who is currently running for U.S. Senate.
The charges all stem from several robocalls sent in September of 2012, attacking Republican leaders in the state legislature for allegedly not supporting veterans. One of those legislative leaders who was attacked, Sen. Russell Olson, testified Tuesday about the calls. His complaint sparked the investigation that led to Willard being charged.
Willard, like Olson and the others, is a Republican. But he has clashed with leaders in the Republican Party in the past. During an unsuccessful bid for chairman of the state party late last year, Willard wrote that the South Dakota GOP is "influenced by special interests and politicians instead of being a party that legitimately represents their values and interests."
The robocalls in question say they were "paid for by Veterans Against Unethical Politicians." There's no record of that group with the South Dakota Secretary of State, which oversees legislative elections. But while political action committees have to register with the Secretary of State's office, Tornow said so-called "advocacy groups" like Mothers Against Drunk Driving — suggesting that Veterans Against Unethical Politicians might be such an "advocacy group."
Willard's trial resumes at 8:30 a.m. Wednesday.
