South Dakota and the totalitarian tradition
INSIDE LINE THE MINNEKOTA CONSORTIUM
August 25, 2020
South Dakota and the totalitarian tradition
Innocence and wrongful conviction projects which subscribe to news aggregators were besieged this morning by alarm bells triggered by a front-page story coming out of Aberdeen, South Dakota. The story contained an element that legal scholars have identified as one of the most seriously flawed parts in the state’s legal code: possession of child pornography. (22-24A)
Legal scholars have termed the law a legal Rorschach blot. One can see just about anything they want to in it. Child pornography laws are considered problematic throughout the nation, but South Dakota’s is particularly crude and slovenly. The problem was emphasized ten years ago when a Sioux Falls attorney was arrested and charged under a federal law for possessing child pornography on his office computer. He was acquitted at trial after he explained that he was researching the photographs so that he could advise clients on legal matters. While state law protects attorneys who have such materials in the course of their work, federal law does not. That situation reveals the legal morass of child pornography laws.
The matter of due process is often problematic in child pornography cases. Law enforcement officers are led to search individuals’ computers by complaints they keep anonymous. Attorneys outside of South Dakota have commented that cases in the state have raised questions about the probable cause on which warrants were based. Furthermore, the exact offense in the materials is not specified because of the nature of the material. South Dakota stipulates that pornographic offense is the portrayal of prohibited sexual acts, but the law seems to permit no sexual acts. It attempts to specify further offense as an appeal to juvenile prurience. Child psychologists point out that prurience is part of the the state of adolescence, so almost anything can be so termed.
Here is the front-page story from the Aberdeen American News that raised alarm:
An Aberdeen man who admitted he had child pornography in November 2018 was sentenced to 10 years in prison with all but two years suspended.
Alexander N. Walter, 30, pleaded guilty to both felony possession of child pornography and, in a separate case, third-offense driving under the influence.
Brown County State’s Attorney Ernest Thompson said that Walter had illegal items he downloaded on the computer and that he turned himself in to law enforcement.
Walter was sentenced to 10 years with eight years suspended on the pornography charge. He was sentenced to two years in prison on the DUI charge and had his driver’s license revoked for one year. He was fined a total of $397. He will serve his prison terms at the same time.
The news story does not contain enough detail to indicate the specifics of the charges for which the man was sentenced, but legal analysts for three justice projects noted immediate concerns which justify a thorough review of evidence, court transcripts, and law enforcement records. The points are:
- The two separate offenses sentenced at the same time. The fact that the pornography offense was in November 2018 and was adjudicated 22 months later in conjunction with an apparently unrelated 3rd DUI offense raised questions among the analysts about timeliness, the strength of the evidence, and the process. The conditions under which the man turned himself in require what the justice attorneys said should be rigorous scrutiny of the due process.
- The matter of turning oneself in creates a conundrum. One analyst asked, you mean a guy walked into a police station and said, “Hey, I’ve got child porn on my computer.” There are circumstances for which the public needs explanation as to how the law is working here. And the fact that the man is being convicted for a third offense involving substance abuse raises very legitimate questions about the circumstances of the child porn. The news report is inadequate to help with the public understanding, but the state’s attorney and the justice system also have a responsibility to give the public a complete accounting. The three analysts who responded said that the case as outlined in the news article seems made for a judicial appeal.
South Dakota has no freedom of information laws, and it gives public officials great discretion in releasing information. When reporter Bob Mercer tried to obtain the investigative report on the death of Richard Benda in conjunction with the EB-5 scandal, the state supreme court ruled for the right of investigators to withhold such information from the public. Legal experts have said that the only hope for South Dakotans ever to have a reasonable way to know what state authorities are doing would be to follow other states in revising the laws and putting into place a freedom of information act.
But they also note that South Dakota is not a state that holds much interest or concern for matters of justice. Most studies on justice in the state find its incarceration rate ridiculously high. This conclusion from The Appeal is typical:
South Dakota, one of the least populated states in the country, jails the most people per capita, according to a new report from Prison Policy Initiative. The state jailed roughly 25,000 people in 2016, nearly 3 percent of the state’s population and almost twice the national average. That’s despite the fact that its crime rate is below the national average.
However, there is little activity or discussion within the state that confronts matters of justice. A few that have some potential for addressing such matters and have given some attention to the state are listed below. There are, however, no active efforts to address the state of justice in South Dakota.
Innocence Project of South Dakota
USD School of Law
414 East Clark Street
Vermillion, SD 57069
Phone: 605-677-5361
(Only DNA cases in South Dakota)
Hamline University School of Law
1536 Hewitt Avenue
St. Paul, MN 55104
Phone: 651-523-3152
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL 60611
Phone: 312-503-2391
Northwestern University
1845 N. Sheridan Ave.
Evanston, IL 60208
Phone: 847-491-5840
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