Jackley to release some Benda documents to auditor

Attorney General Marty Jackley said Friday that he’d release some of the documents from his investigation into former cabinet secretary Richard Benda to the state auditor general looking for wrongdoing at the Governor’s Office of Economic Development.

But Jackley didn’t just release the information. Instead, he sought and received a court order to do so, saying disclosure of criminal investigation documents “should be occurring through proper procedures, not as some suggest by dangerously giving prosecutors unlimited authority to release criminal investigations that may involve innocent witnesses or suspects.”

The documents Jackley mentioned don’t include data about Benda’s suicide, the subject of considerable speculation and an open records request from the media that Jackley has effectively denied.

Instead, they concern Benda’s expense reimbursements, the $1 million grant to the Northern Beef Packers plant that Benda authorized, that was then redirected to pay his salary as a loan monitor at the plant, and other grants and loans to Northern Beef.

Jackley said the auditor determined the attorney general might be the only person who has some of those documents and is able to release them. 

The court order authorizing the release specifies that “except to the extent any information is necessary for inclusion in the Department of Legislative Audit’s public audit document,” the documents turned over by Jackley should remain confidential.

The investigation by the South Dakota Department of Legislative Audit is scheduled to conclude on Jan. 24.

What bills Jackley IS backing

Yesterday I wrote about what Attorney General Marty Jackley won’t be proposing this upcoming legislative session.

For the other side, my colleague John Hult wrote about what Jackley will be asking lawmakers to do.

The list of five proposals doesn’t include any earth-shaking reforms. Instead, Jackley wants to tweak laws to help crack down on meth makers, sex offenders and scams targeting the elderly, while adjusting how the 24/7 sobriety program and livestock brand violations are enforced.

Read it here.

Daugaard, Jackley won’t bring back last year’s open government bills

Gov. Dennis Daugaard and Attorney General Marty Jackley won’t be making a second push this year on behalf of a slate of open government reforms.

Despite backing from Daugaard and Jackley, South Dakota lawmakers shot down five of the eight open government bills pushed by the duo in 2013, including the most significant reforms.

This year, neither man is including those failed bills in their legislative agendas.

“When legislation is brought that doesn’t make it, you need to make a judgement about what’s politically feasible,” said Tony Venhuizen, Daugaard’s senior adviser. “We’re dealing with largely the same legislative membership we had a year ago. It probably doesn’t make sense to try again right away.”

Jackley agreed, but said he’d support any of those bills if individual lawmakers bring them back.

That might happen. The South Dakota Newspaper Association wants to bring one back one failed reform, a change to make police arrest logs public information. Those logs currently can be released at the discretion of sheriffs or police chiefs.

“What we’ve seen, from the news media standpoint, is times when a reporter’s access to those logs is dependent on your relationship with local law enforcement,” said David Bordewyk, general manager of the newspaper association. “If it’s a good relationship, you generally have access to those logs, (but not if it’s a bad relationship)… That doesn’t seem balanced or fair to do it that way.”

Last year, the police log change was attached to another reform, which would have made police mug shots also public. At the combined bill’s legislative hearing, most of the criticism was directed at the mug shot proposal.

Jackley said he’d probably support a standalone bill to make police logs public records.

“We reached a good solution and a compromise on the police logs that was generally accepted,” Jackley said.

Venhuizen said Daugaard would examine such a bill and consider supporting it as well if an individual lawmaker takes the lead.

Last year’s open government bills were produced by a task force of lawmakers, media members and government officials that Daugaard and Jackley assembled. Three of them became law: making electronic databases more accessible to the public, exempting some three-member boards from open meetings laws, and clarifying that exemptions to open records laws can’t be used to retroactively seal information that’s already public.

Five bills were defeated. In addition to the police logs and mug shots bill, the killed bills would have applied open meetings laws to subcommittees of public bodies, repealed the five-year period after which pardons become sealed documents, applied open records law to text messages and emails exchanged by public officials, and removed a clause that let accusations be sealed if they contained “derogatory information.”

Jackley: Benda’s family won’t consent, so no records examination

Previously, Attorney General Marty Jackley gave a conditional approval to reporter Bob Mercer’s request to review Richard Benda’s death file. Mercer and another reporter could do so, Jackley, said, after they got approval from a member of Jackley’s family.

Well, apparently, that approval isn’t coming, and that means no examination of the file. Jackley writes to Mercer:

I disagree with the assertion that there is a legal impossibility by conditioning any release of the Richard L. Benda’s Death Investigation File upon your obtaining consent from an immediate family member. This assertion was only made after the custodial parent, on behalf of the child, refused to provide consent as did the personnel representative of the Richard L. Benda Estate.

While the Attorney General is not concerned that the investigation evidence will not support the independent findings of the pathologist, the coroner’s death certificate or state, federal, and local law enforcement death scene investigation, the Attorney General is concerned it may well affect the innocent members of a family or a minor child. Therefore, your amended and supplemental public records requests are denied until such time as the three conditions are fulfilled.

Here’s Jackley’s full letter:

Jackley: ‘Internet blogs… provide misinformation’ on Benda death

Attorney General Marty Jackley this morning released his full response to the open records request filed by reporter Bob Mercer, seeking access to the investigation into Richard Benda’s death.

Mercer had argued that “news accounts and Internet blogs have raised questions about the death” and thus that Jackley should release the Benda reports to “allow citizens to judge for themselves the depth and scope of the processes that lead to the conclusion that Benda killed himself.”

Jackley appears up-to-date on some of that coverage and did not appear amused:

Considering the involvement of of federal, state and local law enforcement authorities, there has been absolutely no credible facts or evidence calling into question either: (1) the forensic pathologist report, or (2) the Attorney General’s released information that the death investigation reconstruction and forensic testimony demonstrated no foul play and were consistent with the suicide ruling. Internet blogs, specifically excluding yours, that speculate and provide misinformation about cause of death ranging from heart attacks to gunshot wounds to the head, and otherwise misquote that Attorney General’s written releases, fail to provide justification for any release of documents.

For a sample of what Jackley and Mercer were responding to, Cory Heidelberger’s Madville Times blog highlights a comment from Sam Kephart questioning the suicide ruling:

I know, like, and support Marty Jackley and I’m sure he is in exquisite pain over this… divided between what he knows is the right thing to do, which is to rip this case WIDE open with no holds barred and no favors done, versus having to be cautious to protect his pecking order status within the State GOP, which would suggest (or lean on him) that he give the benefit of the doubt to his political seniors… which I’m sure is going on behind the scenes.

Has it occurred to anyone of our senior elected officials that maybe, just maybe, Chinese Mafia (Triad) money was somehow involved and scrubbed through this meat packing deal? It wouldn’t be the first time.

Like the Russian Mob, these Chinese boys can play rough.

Even if Benda did commit suicide, which I don’t believe, then one must ask what drove him to do it and why? What did he know or fear that was so oppressive to his future prospects that he would take his life? Duh…

I’ve heard from plenty of readers who themselves are skeptical about Benda’s death, skepticism focused on two things: the unusually long delay before the release of the death investigation, and the fact that Benda’s fatal wound was a shotgun blast to the abdomen — neither the weapon nor location usually chosen for suicide attempts via firearm.

Not having seen the full investigation report (Mercer and another reporter to be determined will get to do so in private and report on its findings), I can’t say for certain whether there’s any reason to doubt Jackley’s conclusion.

My analysis, based on the facts:

There are three possible ways Benda could have died: murder, suicide, or accident. Presuming the facts are accurate — and the coroner’s conclusion that Benda died of a gunshot wound to the abdomen is consistent with the report of an eyewitness that Benda had a “bullet hole in the side” — the ruling of suicide is plausible (which is not the same thing as being obvious or self-evident).

Benda’s death certificate shed light on the manner of his death: he apparently went out to a copse of trees, secured his shotgun to a tree, and pushed the trigger with a stick. If one were to shoot oneself with a shotgun — an unwieldy weapon to turn on oneself — that seems a likely manner to do so.

The abdomen wound certainly is unusual, though it’s not known whether Benda intended to shoot himself there. It’s possible he was aiming for somewhere else on his body, but given the awkward arrangement involving a shotgun secured to a tree and pushed with a stick, it’s possible the barrel was jostled at the key moment.

The time delay, as my colleague John Hult pointed out, was highly unusual.

Here’s where my natural skepticism comes up short, though: If Benda didn’t commit suicide, how did he die? and why would the authorities report something different?

As said above, the only alternatives would be murder or accident. If the death was a hunting accident (as Benda’s brother-in-law insisted it had to be at the time), why would Jackley cover that up? While a suicide may have more social stigma than an accident, nothing about the manner of Benda’s death changes anything about any wrongdoing he may have done while in office. So why would even this hypothetical conspiratorial Marty Jackley take the drastic move of falsifying an official report (which would involve securing the cooperation of multiple people, any of whom could break the whole fiction open by speaking) for no significant effect?

Theories about East Asian mobsters murdering Benda could at least provide a slightly more plausible reason for falsifying the report — to avoid contaminating a delicate investigation into organized crime by letting the mafia know how much authorities know. But why wait a full month and then release a false report? Authorities withhold information from the public all the time because of ongoing investigations, and there’s no reason Jackley couldn’t have done so here for even longer than the month it took for the report to be released.

Few of the Benda skeptics out there seem to have anything to go on other than distrust of Jackley. That’s their prerogative, but whatever doubts someone has about the suicide ruling, the other alternatives seem even less likely given the facts on hand.

Hopefully media examination of the investigation file will clear things up for good.

Jackley says state not investigating Mike Rounds

A late update to the AP report on the investigations into Northern Beef Packers and the Governor’s Office of Economic Development got Marty Jackley on the record about a politically sensitive part of the investigation:

Jackley said late Thursday that “Mike Rounds was not and is not a target of the state’s investigation into the office of economic development.”

That’s not to say that federal officials aren’t (or are) investigating Rounds. We won’t know that until the feds decide to tell us.

It also doesn’t mean Rounds won’t suffer any political fallout from this story. Northern Beef was a top priority of his as governor, and Benda was a subordinate. Certainly one can expect Rounds’ rivals to try their hardest to make it an issue in the campaign.

But Jackley’s announcement is definitely good news for Rounds, given that right now, no one outside of the investigations knows exactly how far they will go.

SD under investigation week after officials’ death

(Reposted from the main Argus Leader website)

State and federal authorities are investigating “alleged misconduct” several years ago at the South Dakota economic development office.

Gov. Dennis Daugaard acknowledged the investigation Wednesday afternoon in response to inquiries from the Argus Leader. The release came just over a week after the death by gunshot of Richard Benda, a former cabinet secretary who oversaw the Office of Economic Development.

Officials refused to say Wednesday whether the investigation was connected to Benda, or unrelated.

“Earlier this year, I became aware of alleged misconduct, prior to my administration, at the economic development office,” Daugaard said in a statement. “I asked the state attorney general to investigate and provided all relevant materials to him. There has also been a federal investigation.”

Daugaard referred all further questions to Attorney General Marty Jackley and U.S. Attorney Brendan Johnson.

Jackley acknowledged the investigation but declined to release any details.

“I will confirm that requests have been made for authorities to review allegations of financial misconduct at the Office of Economic Development,” Jackley said in a statement. “That investigation is ongoing, and I am therefore unable to provide further information.”

Johnson said he “can’t confirm or deny the existence of any federal investigation” despite statements by Daugaard and Jackley that it exists, citing his office’s policies and ethical guidelines.

Daugaard learned of the issue in the spring, Daugaard aide Tony Venhuizen said. He said the governor’s office has “cooperated” with the investigation but declined to say whether the governor or any other staff have been interviewed by law enforcement.

None of the authorities are saying exactly when the alleged misconduct occurred, other than that it was before Daugaard took office in January 2011.

Daugaard’s precessor as governor, Mike Rounds, acknowledged he “recently became aware” of the investigation but declined further comment via a spokesman for his U.S. Senate campaign.

“I believe it is appropriate that any further questions be directed to Attorney General Marty Jackley,” Rounds said in a statement.

Rounds’ spokesman, Mitch Krebs, declined to say whether Rounds had been interviewed by law enforcement.

Bill Janklow, who preceded Rounds as governor, died in 2012.

When state and federal law enforcement cooperate on an investigation involving potential public corruption, Jackley said there’s no set rule for whether state or federal charges take precedence.

On Oct. 20, Benda, South Dakota’s secretary of Tourism and State Development from 2006 to 2010, died of a gunshot wound near Lake Andes. The state economic development office was in Benda’s department.

Law enforcement officials have not released any further information about Benda’s death. Jackley said he’s still waiting on an autopsy and “additional forensic testing” from the case and anticipates releasing findings in “14 to 30 days.”

If Benda was related to the investigation, his death wouldn’t necessarily halt it. Speaking in general terms, Johnson said in some cases investigations continue even if the central figure dies during the process.

In addition to referring it for criminal investigation, the governor has also initiated an “independent review” of the state economic development office “to verify that any alleged misconduct was an isolated incident.”

Venhuizen said he expects that review to finish by the end of the year. The review will be released to the public, he said.

Jackley elected chairman of western attorneys general

And in other news about South Dakota constitutional officers, Attorney General Marty Jackley has been picked to be the next chairman of the Conference of Western Attorneys General.

Anyone smell smoke?

Yesterday Rep. Steve Hickey said he was considering smoking out his speeding ticket points bill.

Today two more bills got defeated in committee that I hear might have smokeout attempts:

If school sentinels gets voted down Friday, or the open carry bill tomorrow, both of those issues are very likely to face smokeout attempts.

Most smokeout attempts fail, of course. But they’re fun to watch. I’m looking forward to the floor theatrics.

Bill increasing penalties for guard-juvenile inmate sex passes committee

A bill increasing penalties for prison guards who have sex with juvenile inmates passed its first committee unanimously today.

It’s currently a Class 6 felony, the lowest level of felony in South Dakota law, for a guard to engage in sexual activity with an inmate. That carries a maximum sentence of two years in prison and a $4,000 fine.

But under the law there’s no difference depending on whether the inmate is a legal adult. Attorney General Marty Jackley said sex with an inmate younger than 16, the age of consent, could be charged as rape, but sex with an inmate who’s 16 or 17 would be treated the same as with an adult.

That would change if the Legislature passes Senate Bill 38. It would make it a Class 4 felony, with a maximum sentence of 10 years in prison and a $20,000 fine, for a guard to have sex with a juvenile inmate.

“What we’re trying to say is, this activity’s bad in the first place,” Jackley told the Senate Judiciary Committee Tuesday morning. “If you’re going to pick on that minor… we’re going to enhance that felony.”

The bill was inspired by the case of Lorenzo Brown, Jr., a former Sioux Falls Storm quarterback and Minnehaha County Juvenile Detention Center employee who pleaded guilty to sexual contact with an inmate for relations with a then-17-year-old.

“I think most people in the community, coming out of the Sioux Falls case, have said, ‘Why is this only a 2-year felony?’” Jackley said.

The South Dakota State’s Attorney’s Association and South Dakota Families First both testified briefly in support of the bill.

The bill passed the Senate Judiciary Committee 7-0 and now heads to the full Senate.

Copyright © 2011 www.argusleader.com. All rights reserved.
Users of this site agree to the Terms of Service, Privacy Notice/Your California Privacy Rights, and Ad Choices