News, notes, and observations from the James River Valley in northern South Dakota with special attention to reviewing the performance of the media--old and new. E-Mail to MinneKota@gmail.com

Tuesday, November 15, 2016

A professor gets accused and arrested for a Trump-style grapple and grope

An Augustana University professor was accused by a woman with whom he had had consensual relations with foisting physical attentions on her after she said no.  She said she just wanted to cuddle.  Professor Reynold Nesiba, a Democrat, was just elected to the South Dakota Senate. The only news source which is dealing with the incident with anything akin to a comprehensive journalistic treatment is the Dakota Free Press.

The complication is that the arrest appears to involve some lengthy and detailed planning so that a television reporter confronted the professor with the arrest warrant before law enforcement informed him of it and so that the actual arrest  with the professor being hand-cuffed and loaded into a van could be recorded as a television production.  

In addition to making the arrest a large public display,  the timeline in processing the complaint raises questions of why law enforcement is making such a publicity production of it.

  • 26 Sept., Monday: Date of incident
  • 28 Sept., Wednesday: Date incident was reported,  Officer Van Dyke dispatched to obtain report.
  • 29 Sept., Thursday: Date incident was investigated by Detective Chris Schoepf.
  • 30 Sept., Friday: Date Nesiba agreed to an interview by Schoepf.
  • 11 Oct.: Date Schoepf’s warrant request was notarized.
  • 8 Nov.: Date warrant request was filed.
  • 14 Nov.: Date warrant was served and arrest was made.
  • [The warrant request made available contains no approval signature from a judge.]
The warrant request contains summaries of the accusation and of the interview response by Reynold Nesiba, which outlines the material that would be examined through legal due process,  but the subject matter is not what raises questions about law enforcement procedure.  What is unusual is that so much information is released to the public in a state where such information is often withheld.  


What is at issue is the discretion given to law enforcement agencies about releasing information to the public:

      1-27-1.5. The following records are not subject to §§ 1-27-1, 1-27-1.1, and 1-27-1.3: [required public disclosure].     (5) Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, if the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training. However, this subdivision does not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person, and this subdivision does not apply to a 911 recording or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure. This law in no way abrogates or changes §§ 23-5-7 and 23-5-11 or testimonial privileges applying to the use of information from confidential informants;

Over the years, a number of cases have been submitted to wrongful conviction and justice projects in South Dakota.  Few deal with major crimes, such as murder, but deal with lesser crimes which nevertheless give people criminal records which are questionable and which damage their lives.  Here is the Innocence Project’s statement on one of the causes of wrongful conviction:
  • Misconduct by Government Actors
  • Some wrongful convictions are caused by honest mistakes. But in far too many cases, the very people who are responsible for ensuring truth and justice — law enforcement officials and prosecutors — lose sight of these obligations and instead focus solely on securing convictions.
  • While many law enforcement officers and prosecutors are honest and trustworthy, criminal justice is a human endeavor and the possibility for negligence, misconduct and corruption exists. Even if one officer of every thousand is dishonest, wrongful convictions will continue to occur.
In trying to investigate cases referred to them,  innocence and justice projects have been stymied in South Dakota by the refusal of authorities to turn over full records for them to examine. 

In the case against Nesiba,  the press and, consequently, the public were given information which is unprecedented for South Dakota.  In nearly all cases that have been referred to justice projects,  law enforcement agencies invoke the above statute so that the public cannot find out what evidence is involved and how law enforcement performed in dealing with that evidence.  The unusual amount of disclosure in this case in conjunction with the timeline raises questions of why law enforcement is performing in the way it is over this incident.  

South Dakota has  no freedom of information law which permits the press and the public to obtain full records on the handling of police investigations and judicial procedures.  In many cases, the public has no idea about how law enforcement performed or why it made the decisions it did.  

High profile cases in South Dakota include the alleged suicide of Morgan Lewis, a professor at NSU, in 2004.  There were peculiarities about the crime scene and some partial witness accounts which seemed to indicate murder.  Initially, the coroner listed the cause of death as murder.  There were some unexplained resignations in the police department at the time,  one of them directly relating to the handling of Morgan Lewis' death.  After a period of months,  the Chief of Police held a press conference and said the death had been determined to be a suicide.  He said he had hired outside consultants to reach that conclusion,  but no records of the conduct of the investigation or the review of the materials was ever released to the press and the public.  It left the public feeling skeptical and wary about the handling of the death.

A most obvious case is the alleged suicide of Richard Benda in 2013,  who was a major player in the Northern Beef Packers-EB5 scandal.  No one has ever had access to the full investigative record and aspects of the crime scene suggest the possibility of foul play.  Reporter Bob Mercer tried to pursue the records all the way up to the state Supreme Court, but the court backed up the Attorney  General's right to withhold them, if he pleased.  State officials were clearly implicated in that  scandal, but without records of a full investigation, their exact role and participation in the scandal could be examined by the public..

The 2015 murder of his wife and two children by Scott Westerhuis has conclusive forensic evidence about the deaths, but the investigative record on the many state officials and others involved in the handling of the federal Gear Up funds has never been made public.  Although some arrests and pending prosecutions of people involved  are in process,  a full accounting of the embezzlement and fraud involved is not available to the press or the public.

So, when the state code seems to be to withhold any detailed information,  the level of disclosure and orchestrated publicity on the arrest  of Reynold Nesiba stands out.  It seems compounded by the protection of the identity of the "victim,"  as Detective Schoepf consistently refers to the complainant throughout his report.  The names of minors involved in unsavory incidents are withheld by law.  The identity of rape victims is withheld in press accounts as a matter of discretionary policy,  but in sexual assault cases which are brought forward and pursued by a complainant when there is no corroborating evidence about the particular acts of offense,  the identity of the complainant is generally considered an essential part of the prosecutorial process.  The arrest, in this case, seems to have been justified on the word of the complainant.

Suffice to say at this point,  that the handling of this case raises many questions about why it is being handled in the way it is.  But in South Dakota,  don't expect any reasons.

1 comment:

David Newquist said...

Donald Trump’s Access Hollywood tapes along with college campus events have raised the awareness of sexual assault as a serious offense and have motivated some militant attitudes about the issue. This post is no way a defense of sexual assault, and I will not post comments that interpret it as such as the subject or point.

This post is about a miscarriage of the justice system. Some have concluded that the defendant is guilty on the basis of news accounts and the request for an arrest warrant that was put online by KELO-TV. An arrest warrant operates the same way a grand jury hearing does. A grand jury receives only information that supports an indictment; it does not hear any exculpatory evidence. A request for an arrest warrant contains only the information that convinces a judge to sign it. It does not contain a full report of what the investigators found, and so does not provide any information about exculpatory or mitigating evidence. In many other states, journalists can through open records and freedom of information laws inspect the full investigative record. South Dakota does not have such laws and the public does not have the opportunity to examine all the evidence uncovered. That kind of information can be forced out only through the discovery process in preparing for a trial.

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