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SDPB Radio Coverage of the South Dakota Legislature. See all coverage and find links to audio and video streams live from the Capitol at www.sdpb.org/statehouse

Legislation Addresses Rare Occurrences

The Attorney General’s package of legislation this year includes two proposals to address rare occurrences: when juveniles are tried and convicted as adults for murder, and when judges set aside a jury’s guilty verdict. These bills have some opposition from defense attorneys who say one bill goes too far and the other, not far enough. Proponents and opponents testified before the Senate Judiciary Committee of the South Dakota legislature.
It’s very rare in South Dakota for a judge to set aside a jury’s verdict and give a defendant his or her freedom. It’s equally rare for a child murderer to be tried as an adult and get a mandatory life sentence.
The attorney general can count on one hand his recollection of both instances. Marty Jackley says there are three inmates serving life for murders they committed while they were juveniles, and he remembers only two trials in which a judge set aside a jury’s verdict.
This is how some laws come into being—they’re drawn up to address those situations that don’t happen very often.
Actually, Jackley says the state has no choice but to make changes in the way it sentences juveniles who are found guilty of first- or second-degree murder.
“South Dakota law currently allows for mandatory life sentences for certain juvenile offenders committing homicide. In a nutshell, the United States Supreme Court has said that’s unconstitutional,” he says
The U.S. Supreme Court says a judge sentencing a juvenile has to have an opportunity to hear about the child’s life and have the option of giving the young offender a sentence less harsh than life without the possibility of parole. That consideration is made in a presentence hearing.
“In trying to craft what that presentence hearing should look like, we just copied verbatim essentially the death penalty statute,” Jackley told legislators.
Jackley says he chose to adapt the death penalty statute because it has withstood appeals in almost every capital case in the state. That law outlines four criteria allowed at a sentencing trial: aggravation, or information that points out vile aspects of the crime; how the victim’s loved ones were affected; the defendant’s criminal history; and mitigating evidence—the kind of information that lets the judge know how the offender came to be standing before a court charged with murder.
Senator Jean Hunhoff questions whether the process is appropriately applied to young offenders.
“The decision-making of a child, of a 12-year-old thought process, is not the same as that of an adult,” she says.
Hunhoff’s comment reflects the thinking of the Supreme Court.
Lindsay Ritter-Rapp tells senators the Supreme Court got it right, but the attorney general’s solution is wrong: “We really think that the framework that is being presented to you really skews it in favor of the prosecution and really asks you to hone in on what aggravating factors are present.”
Ritter-Rapp lobbies for the South Dakota Association of Criminal Defense Lawyers.
“We’re talking about a juvenile whose brain isn’t developed, who has the capacity for change,” she told legislators.
Ritter-Rapp says considerations include juvenile offenders’ age at the time of the crime; their prior criminal conduct, family life, and performance in school and the community; their ability to appreciate the risks and consequences of their conduct; their intellectual capacity and mental health; and their chances for rehabilitation.
Roger Tellinghuisen represents the South Dakota Trial Lawyers. He also testified in opposition to using the death penalty statute as a template for juvenile sentencing hearings.
“We’ve always made a distinction between how we treat children from how we treat adults,” Tellinghuisen says.
“Now I understand that we’re talking about some of the most serious and heinous crimes that can be committed. Whether they’re children or adults makes no real difference to some of you. But we really do, I believe, have an obligation when it comes to kids—juveniles—of taking just a little bit different, maybe a little more of a compassionate approach in how we determine what should be the outcome when they make a bad decision.”
Opponents asked that the bill be amended, to align more closely with the special characteristics of youth and, in the event the young offender is sentenced to life, to provide for an evaluation of the case some years down the road, but senators passed the bill without amendments.
The same senators also decided that prosecutors should be able to appeal a judge’s decision to set aside a jury’s verdict of guilt.
Attorney General Marty Jackley tells the senate committee that the judge’s decision comes at the end of a trial, after all evidence has been presented, and the jury has deliberated and come back in with a guilty verdict. At that point, the judge can set aside that verdict and decide that the prosecutor did not prove the case.
“I still think a judge should be able to do that, because there are those instances when everybody misses it until the very end,” Jackley says. “But we’re just asking, if a judge sets aside or throws out that jury verdict, to be able to take that up to the South Dakota Supreme Court, to our highest Supreme Court, and say, ‘Justices, was this an appropriate legal basis to disregard a jury’s verdict?’” 
Lindsay Ritter-Rapp with Criminal Defense Lawyers disagrees with Jackley. “Our judges are the ones that are sitting during these proceedings. They’re the ones that are hearing the evidence. They’re the ones that are instructing the jury on what the law is,” she says.
At the end of the trial, she says, judges should be able to correct a jury’s error.
“If that judge believes that the jury misapplied the law to the facts, they have that ability to set aside the jury’s verdict,” Ritter-Rapp says. “And I would argue that because this happens so rarely, and they use their discretion and don’t as a matter of course do this, that we should not be in the position of allowing the state to appeal these decisions.”
These two bills move through the system over the next few weeks, along with hundreds of others. Some of them make sweeping changes in how the state functions. Others, like these two, affect just a few people every decade.