Supreme Court Rejects Mercer, Keeps Benda Death Investigation File Secret

I was not sanguine about the prospects of the South Dakota Supreme Court reversing the Office of Hearing Examiners and the circuit court and granting reporter Bob Mercer’s request to review the records of the investigation of Richard Benda’s suspicious October 2013 death. But I was hoping our Supreme Court would at least say something interesting in rejection of Mercer’s lawsuit.

Alas, the thirteen-page ruling issued Wednesday tells us nothing new about public-records law or the former state economic development chief’s supposed suicide. The Supreme Court agrees with Attorney General Jackley and the decisions Mercer appeals that Department of Criminal Investigations was investigating Benda’s gunshot death “to determine whether the death was the result of criminal activity or foul play.” The Court noted that Mercer himself conceded that records of criminal investigations are exempt from public disclosure (see SDCL 1-27-1.5(5)).

The Supreme Court says that the Favish case (the effort to obtain and publish photos from the site of Vince Foster’s death) cited by Mercer is irrelevant to a South Dakota public-records dispute, since Favish applied to the federal Freedom of Information Act, the relevant language of which has no analogue in South Dakota’s public records statues (SDCL 1-27).

The Court concludes by saying that if Mercer and the rest of us journalists want access to documents like the Benda death investigation file, we’ll have to “seek a statutory change from the Legislature.” Either that, or Mercer will just have to get his Tom Cruise spider belt and grab the file himself.

On the heels of this victory for secrecy, Attorney General Marty Jackley released two letters he wrote to U.S. Attorney General Eric Holder (in October 2014 and February 2015) asking for an investigation of the Department of Justice over its handling of the EB-5 scandal, which broke publicly with Benda’s death. AG Jackley says he hopes new U.S. AG Loretta Lynch will “look into these matters and address any concerns that exist”… which sounds like code for “help the South Dakota establishment complete its whitewash of the ways Richard Benda, Joop Bollen, and Mike Rounds abused the EB-5 program for the benefit of political pals at the expense of foreign investors and South Dakota taxpayers.”

10 Responses to Supreme Court Rejects Mercer, Keeps Benda Death Investigation File Secret

  1. More benefits of single party rule. If you want to know our secrets, you have to ask us to change OUR rules. In other words, go away you little pest! And so it goes…

  2. I’m with you, Cory. Didn’t really expect any different, but, it is very disappointing. Very disappointing.

  3. larry kurtz

    Richard Benda died for SDGOP sins. Marty should be careful about poking DoJ: he might get his just desserts.

    Reread the comments under this post then wonder how Bollen and Benda bought their women:

  4. larry kurtz

    Anyone believing Thune and Noem jumped on the human trafficking bandwagon for altruistic reasons is delusional. The proximity of a christian cult setting up shop near an Indian reservation lands square in the laps of SDGOP predators like Joel Arends and Dan Lederman through their relationships with Hutterites who need fresh women and lobbyists who need legislators to blackmail.

  5. David Newquist

    Those of us who have worked on wrongful conviction and innocence projects know how impenetrable the secrecy barriers guarding what passes for state government are. We need a little Snowden. At the local level, the death of Prof. Morgan Lewis at the doorway to my old office building was met with the same refusals and stolid commitment to secrecy.

    The Supreme Court decision in its decision upholds the contention of the circuit court that the state law “prohibits” the release of law enforcement investigative information. The law never says release of information is “prohibited.” In citing where disclosure is not required, the laws use language such as records “not subject” to disclosure and is “exempt” from required disclosure. In other words, the laws leave the matter of disclosure up to the agency personnel involved, and the Supreme Court affirms the Attorney General’s use of personal discretion, not that the law requires him to withhold records. In basing its decision on the specific language of the laws (SDCL 1-27-1.5 (5) and 23-5-11), it avoids pointing out the decision to withhold records is a matter of arbitrary choice, not of adhering to any specific requirements of the law. Not providing the public with details about how the investigation was carried out is a matter of Jackley’s choice.

    The letters Jackley sent to the Department of Justice asking it to review its own handling of the case is a bit preposterous, as the DOJ and its U.S. Attorney for South Dakota, Brendan Johnson, have been absolutely tight-lipped, much to the frustration of those who want the matter exposed to full sunshine. He questions the timing of the investigation on the grounds that undertaking it during the approach the 2014 elections seemed like a political choice. The DOJ has released absolutely no information other than that it was conducting an investigation. Here is where “disingenuous” is an apt term.

    However, the DOJ investigation is the one hope that the public has in learning the facts about the Benda-Eb-5 schemes. The federal Freedom of Information requires full disclosure and release of all documents involved at some point. If the DOJ undertook an investigation of itself in the matter, it would produce even more detailed information that the public can eventually scrutinize.

    Assuming that there is no one in state government with the inclinations of a Snowden or Julian Assange, there is apparently no one in the press with the inclinations of Woodward and Bernstein, either. There are people involved in the Northern Beef scheme who know things and possess details. On occasion some have emerged to write comments on this web site, but for some reason recede into the background, never to be heard from again. Tracking down these people and asking for the information they possess would give some enterprising journalists a ticket to better jobs. But, in the meantime, we’ll have to wait for the DOJ to finish its investigation and hope someone is around to take advantage of the Freedom of Information Act.

  6. mikeyc, that's me!

    What will happen to Pat Duffys files?
    Will they eventually be released to SD
    Dems office?

  7. Mikeyc, you ask a question on which I am doubly ignorant: I don’t know what documents might remain in the Duffy estate, and I don’t know which of them might have been gathered under contract to or on behalf of the Democratic Party.

  8. gud discussion.jackley trying to smear feds w fed program.askbrendan in rc in june pub mtg

  9. Move along folks. The Janklow/Rounds appointees on the state court say there’s nothing to see here. Nothing to see.

  10. tara volesky

    There are many people out there that could be whistleblowers and expose the whole thing, but are not going to risk their livelihoods.