SD Supreme Court: Attorney Wants Arrest Expunged; Inmate Appeals Lengthy Sentence

Oct 8, 2014

The South Dakota Supreme Court is meeting at the University of Sioux Falls this week. This morning the court is hearing oral arguments in three cases, among them a challenge to a lengthy juvenile sentence and a request from an attorney to have his arrest record cleared.

First up on the calendar is the case of Brandon Taliaferro (pronounced “Toliver”). He's a lawyer who served as a Brown County deputy state’s attorney until his boss dismissed him and asked the Division of Criminal Investigation to look at possible witness tampering, suborning perjury, and other charges.

Also investigated was Shirley Schwab, the director of the Court Appointed Special Advocates program in Brown County.

When Taliaferro and Schwab were eventually tried, the judge essentially threw the charges out.

It all started with a rape case. An Aberdeen man, Richard Mette, was investigated for sexual assaults against children over the course of years. In a deal with the state, he pleaded guilty to one count of raping a child and was sentenced to 15 years in prison.

Taliaferro and Schwab felt that the man’s wife knew about Mette’s crimes and was complicit. They were accused of trying to influence the child witnesses and the children’s therapist to build a case against the wife.

Taliaferro and Schwab eventually went to trial, and after the state rested its case in chief, Judge Gene Paul Kean acquitted them. He explained to the jury that there were a lot of side issues—politics in the Brown County State’s Attorney’s office, possible disputes between Schwab and the Department of Social Services, and a substandard investigation by DCI Agent Mark Black.

Kean pointed out that the counselor and the children who Schwab and Taliaferro were accused of trying to influence were not called to testify.

The judge acquitted Taliaferro of five charges, and the state dismissed the other two, one before the trial and one after.

Taliaferro then asked the judge to expunge his arrest record. That would mean that Taliaferro, if asked in the future if he’d ever been arrested, could truthfully say no. State law allows the judge to expunge the arrest record of someone who has been acquitted. But state law does not allow the judge to expunge the arrest of someone whose charges were dismissed unless the prosecutor agrees.

In this case, the prosecutor did not agree.

Michael Moore, the Beadle County State’s Attorney  was called in to try the case because of a conflict with the Brown County system, where Taliaferro worked.

So now, in his brief to the Supreme Court, Taliaferro’s attorney, Michael Butler, argues that all charges against his client are “inextricably intertwined,” and so the judge should be able to dismiss all of them.

The state says the statute is clear, and only the five acquitted charges are not subject to the prosecutor’s consent.

The state contends it lost the case only because the prosecutor was hesitant to compel the child victim to testify.

Attorney General Marty Jackley says DCI Agent Mark Black was dismissed after this case and for other reasons:

It’s a matter of public record that he had been involved in a disturbance relating to his wife, as well as in relation to this particular investigation,” Jackley says. “So I would say that these were all factors, that there’s a certain—certainly a particular standard that we hold a DCI agent to, certain expectations that were not being met.”

Jackley notes that his office did not prosecute Taliaferro and Schwab, but under state law he is required to represent the state in the appeal.

Jackley’s office has a greater stake in the outcome of the last case of the morning, that of Shawn Springer. If state Justices address all issues raised in briefs, they’ll decide whether a recent U.S. Supreme Court case is applied retroactively. And if it is, it affects the sentences of three inmates who were sentenced to life without parole as juveniles.

Shawn Cameron Springer was 16 years old in January 1996 when he and 14-year-old Paul Dean Jensen robbed, kidnapped, and killed Michael Hare in Pierre while they were riding in Hare’s taxicab.

Springer cut a deal with the state, confessed to kidnapping, and agreed to testify against Jensen, who was the one who pulled the trigger three times.

As a result, Jensen was sentenced to life in prison without parole, the mandatory sentence for first-degree murder even for juveniles at that time.

For kidnapping, Springer faced up to a life sentence, but Circuit Judge Max Gors instead sentenced him to 261 years, with a first parole possibility in 33 years.

Now enter the U.S. Supreme Court case Miller v. Alabama.

Attorney General Marty Jackley explains its ramifications to legislators in 2013, when the state adjusted its sentencing statutes to conform to the high court decision. He makes these remarks while testifying before the Senate Judiciary Committee:

“So when you read Alabama, the Miller v. Alabama case, when you’re going to have a juvenile sentencing scheme, you’re still allowed to have a life sentence, but you have to do two things. You have to give discretion to the judge, so it can’t be a mandatory life; it has to be a discretion where the judge can give up to life. And number two, there has to be a hearing involved.”

In other words, Paul Jensen’s mandatory life sentence, if handed down today, would not be constitutional.

Whether it should be retroactively considered unconstitutional is a question the court will have to answer.

As for the three lifers affected by this decision, Paul Jensen comes up for a new sentencing in Stanley County in January. Jessi Owens had her life sentence reduced to a term of 60 years last month in Codington County. The Meade County State’s Attorney has not yet responded whether Daniel Charles has asked for a new sentencing hearing.

As for Shawn Springer, he wasn’t sentenced to mandatory life, and he did have a hearing at which his lawyer presented mitigation. Judge Gors took into consideration his young age, his potential for rehabilitation, his juvenile record, and other mitigating and aggravating factors, before handing down the sentence.

On June 28, 2013, Judge Kathleen Trandahl noted that Springer would be parole eligible on Jan 27, 2029, at the age of 49. And she denied his request for a new sentence.

That’s the decision Springer is appealing.