Team Bosworth’s Best Argument: False Circulator’s Oath Not “Material”

Twelve citizens found Annette Bosworth guilty of twelve felony charges last night. Those twelve jurors had no political agenda, no personal stake in the outcome. They would have gotten the same pay and the same supper from Pizza Ranch no matter what verdict they delivered. In the most honest, democratic scheme of justice we’ve come up with, those twelve jurors weighed the evidence and the arguments and sent Annette Bosworth home a convicted felon.

Annette Bosworth hears the jury say "Guilty" 12 times. Hughes County Courthouse, Pierre, SD, May 27, 2015. (screen cap from KELOLand.com)
Annette Bosworth hears the jury say “Guilty” 12 times. Hughes County Courthouse, Pierre, SD, May 27, 2015. (screen cap from KELOLand.com)

Annette Bosworth spent $55,000 of campaign money on her legal team.* Lawyers Robert Van Norman and Dana Hanna faced an uphill battle: the evidence of perjury was clear and public. Their client had confessed her crime in the media twice (see the April 17, 2014 interview with Greg Belfrage and the May 27 Sioux Falls press conference, now written down in the trial record and history by the lawyers as the “dirty-words conference“).

Yet after the state’s lawyer Brent Kempema’s sloppy, poorly concluded closing argument and Dana Hanna’s more aggressive spaghetti throwing, I thought the defense just might win. Stephen Lee of the Pierre Capital Journal offers the best summary of the arguments I’ve seen. I’d like to look at what struck me as the defense’s best argument.

Amidst appeals to Bosworth’s sainthood (Hanna reminded jurors that the noble Bosworth was off saving lives in the Philippines and prioritizing her medical practice over her campaign), stupidity (Hanna called her “an amateur playing a professional’s game”), and political persecution (Hanna referred to my original challenge to her nominating petition and told the jury that I disagreed with her politics… which is a misrepresentation: Bosworth has no politics with which to disagree), the defense rolled out a splendid technical argument that I don’t think I’ve ever seen road-tested by any of Bosworth’s wild-eyed onliners.

Hanna argued that Bosworth’s false circulator’s oaths did not constitute perjury because they did not constitute a false statement of a material fact. Here’s the logic:

  1. The statutory definition of perjury requires that the false statement be made in a “material matter.”
  2. “Material” means influencing some official action, in this case, then-Secretary of State Jason Gant’s decision to validate Annette Bosworth’s nominating petition.
  3. Former Secretary of State Chris Nelson testified last Wednesday that the Secretary of State looks only at the form, the apparent completeness of a submitted nominating petition—the SOS evaluates the paper on face, not on the facts the form purports to present.
  4. Asked what the SOS does if presented with evidence that a circulator’s oath was false, Nelson testified that that would be for a court to decide.
  5. Whether Bosworth circulated any given petition sheet, witnessed every signature, and signed a true circulator’s oath could thus make no difference in SOS Gant’s decision to validate the petition. SOS Gant would have taken exactly the same action if Bosworth’s oath had been true.
  6. A false circulator’s oath is thus not a material fact.

When I judge high school debate, I am willing to grant a win to a Negative team (the HS debate version of the defense) who is losing every other argument but who can run a smart, relevant argument on Topicality, which revolves around the meaning of words in the resolution. Yesterday, Team Bosworth ran T on “material” and said the state had failed to present a real case for perjury. Sure, it’s a technicality, but it’s a clever technicality, especially in a case where the state’s argument revolves around saying “the law is the law.” The defense grabbed the words of the law and of the state’s first expert witness and turned them in favor of their client. That’s pretty good debate, and that’s the best this defense could do.

But that’s the kind of technical argument that appeals to a debate judge like me. The jury was not composed of debate judges any more than it was composed of Bosworth-scandal addicts. The jury apparently was not going to throw out the overwhelming facts of the case (the “ball” on which the state’s superior rebuttalist Robert Mayer told them to keep their eye) for one clever technicality. The jury instead appears to have focused on the central argument of this case, which I offered Friday and which the state hammered in closing yesterday: oaths matter.

That technicality was not clever enough. The “material” argument rested on the defense’s false dilemma. Bosworth did not face a choice between presenting her false circulator’s oath and presenting her true circulator’s oath. On the six sheets in question, Bosworth’s choice was to present a false oath or present no oath. She could have left the oath blank and included those six sheets which the actual circulator had failed to sign in her submission. Secretary Gant would have seen the incomplete circulators’ oaths and would have chosen not to validate the signatures on those sheets. Bosworth’s choice to falsely sign those six sheets made a material difference in the Secretary’s action. Her lie mattered. Her lie, in the eyes of twelve of our peers, makes her a felon.

Judge John Brown still has to confer with the attorneys, but he suggested last night that sentencing could take place on July 1. He is holding Bosworth’s passport until then, meaning no overseas medical mission trips or running away to Canada the way her husband did last June right after she was arrested.

*   *   *

In his instructions to the jury, Judge Brown said that if the jury found that a witness had lied under oath, the jury could disregard all of that witness’s testimony.

Yesterday, the jury found that Annette Bosworth had lied on six of her petition sheets. If we can cross-apply Judge Brown’s logic to the electoral process, we can justify disregarding all of the statements Bosworth made under oath in the petitioning process. Annette Bosworth swore a circulator’s oath on 106 petition sheets containing 1,200 signatures. Had a Circuit court had time to act on Bosworth’s nominating petition and throw out all of those signatures due to Bosworth’s perjury, Bosworth would not have had enough signatures to qualify for the June 2014 Senate primary ballot.

*The $55,000 I cite above went to Robert Van Norman’s law office. Bosworth also paid over $12,000 out of the last dwindlings of her campaign cash this winter to Sioux Falls lawyer Jeff Beck. Beck originally represented Bosworth when she was arrested and indicted last summer. He did not appear to be acting as her lawyer in this month’s trial, but he did testify as a star defense witness to challenge her former attorney Joel Arends’s testimony for the state.


36 Responses to Team Bosworth’s Best Argument: False Circulator’s Oath Not “Material”

  1. Bill Dithmer

    Its time to start that sentencing pool for some last minute fun.

    It looks to me like she will get five, with four knocked off the top and one doing community with an oppertunity to clear her record at the end of her original five.

    Then she can ask for her medical license back, but I’m betting that her next mental evaluation might be the most important test of her life.

    Its always possible that the judge will put a gag in her mouth like the system did to Newland to keep her from hurting herself any further. Unfortunately, that would be like having a hooker take a chastity pledge, no no Annette would never be able to keep quiet.

    The Blindman

  2. Porter Lansing

    Mr. Heidelberger,
    Your debate rules and analysis are fascinating. Please, include them in your commentary whenever possible. That WAS a clever defense maneuver! (as an irrelevant aside … I almost participated in debate as Mr. Roberts was a compelling and motivating coach but the pretty girls were MORE compelling and motivating in the drama department across the hall. Foolish hormonally influenced boy!!!) lol

  3. mike from iowa

    Maybe now Bos can be forced into a psych evaluation which I previously said she should be forced into-for her own good. I agree with the Blindman she can’t and won’t keep her trap shut. Martyrdumb,here she comes.

  4. Owen Meany

    This was the correct verdict. Twelve jurors saw through the hype of political persecution and black van sightings, and saw through the hair splitting technical argument of materiality. It was clear that Dr. Boz did exactly what she was accused of: swearing to facts on nominating petitions that she knew were not true. The language of the petitions isn’t exactly confusing. You don’t exactly need a Masters Degree in Public Administration to figure it out. It’s not like reading the tax code. Anyone who can read and who is possessed of average intelligence should be able to figure it out. Someone who completed 4 years of undergraduate school, was admitted to and completed medical school certainly has the horsepower to figure it out. Of course, those same jurors probably also recognized that Annette admitted to the elements of the offense several times.

    I am sorry to see anyone suffer. But when they are suffering as a result of their own stupidity and attempts to blame others, I don’t feel nearly as bad.

    As far as sentencing goes, keep in mind that Judge Brown recently handed down what has to be one of the most lenient sentences ever imposed on a Second Degree Murder conviction in the history of SD. Unless Dr. Boz does something so stupid that it eclipses the stupidity of everything that got her here, she can likely expect a sentence that gives her the opportunity to right her ship and try to save her medical license. If she shows up and expresses humility and personal responsibility for her personal acts, I expect suspended jail time, a fine, several years of supervised probation, and perhaps some other bells and whistles. Even money odds she gets a suspended imposition of sentence.

  5. The big sigh of relief should come from the fact that Bos may get the mental help she needs. The delusion Bos has makes her unfit for the role of a medical practitioner that is for sure even in the Philippines (Primum non nocere). Maybe with some serious inpatient help, she may be able to be a parent to her children.

  6. Sentencing pool? Bill, I might post that!

    Jerry, can the judge sentence Bosworth to mental health treatment? Nothing in the trial addressed mental health issues, but could the judge take that discretion? As I look at Owen Meany’s comment about suffering, it occurs to me that we could seek a punishment that would ultimately relieve Bosworth’s own suffering and her family’s and put her on a course for more stable service as a doctor, where she has shown her ability to do useful work.

  7. Porter, my education at the hands of Gail Means, Judy Kroll, Donus Roberts, Doug Tschetter, Ann Tornberg, and other great coaches who judged me and my students indelibly imprinted my thinking, writing, and speaking. High school debate provided a useful way to think about numerous legal and policy issues. Of course, as yesterday’s verdict may indicate, it can also lead to reaching for wild technical arguments that regular folks will discount in favor of the raw facts. As Hank Aaron and Robert Mayer said, “Keep your eye on the ball.”

    But I also enjoyed high school theater, in no small part for the same reason Porter mentions.

  8. I really wish you had the time and the resources to completely audit all of her signatures. I think most of the hutterite sign could have been invalidated, combined with the 7 box n have sheets, the other errors, and party affiliation you could have gotten there. But it would have taken $100k I think most in legal bills for the court challenge. I’m satisfied though. For all the harm she has caused – being able to preface her name with convicted felon is a good step but merely a pittance.

  9. Donald Pay

    There’s a reason why the circulator’s oath is material. It is the first, and most important, line of defense that electors count on to guard against fraudulent signatures that would lead to a fraudulent election.

  10. Owen Meany

    In most sentencing situations involving felonies, the defendant is required to submit to a pre-sentence investigation which involves completing lengthy forms about personal history and the details of the offense. That is generally followed up with an in-person meeting with a Court Services Officer who will prepare a report and probably make a recommendation to the judge. The courts want this sort of information to help them exercise sentencing discretion to make a sentence “fit.”

    It is not unusual within certain strands of offenses, if you will, to see various conditions of a suspended sentence include things like no alcohol or drugs, regular attendance at AA/NA Meetings, getting a sponsor, seeking a drug or alcohol evaluation and following the recommendations are often included in drug and alcohol based offenses. I have seen mental health components play a role, but usually in cases where the facts and circumstances led to the offense. For instance, Defendant X went off his meds (again) and showed up naked at Hy Vee. Or, another example, a person with a history of spousal abuse not following through with anger management courses. Although some of Annette’s issues seem to be apparent to everyone but her, how did those issues cause this offense? She didn’t sign and file these petitions because she’s narcissistic or gullible. She did it because she didn’t think (a) she’d get caught and/or (b) it would matter.

    The other ball to keep one’s eye on here, is that in reality, a sentence in a criminal case either serves as a sufficient “wake up call” to influence people to make changes, or as means to secure society from people who have demonstrated their danger to others. It’s a really clumsy tool for re-engineering people, absent on-going efforts like you see being made with drug courts.

    That’s a long way of saying, Cory, I don’t know how a judge could necessarily require this particular defendant to seek some particular treatment and follow through.

  11. David Newquist

    As Mike and Jerry have pointed out, a looming issue here is whether Bosworth’s narcissism is so severe as to render her unfit to practice medicine. She was once required to put herself under psychiatric care and to have regular consultations with a licensed clinical psychologist by the SDBMOE. The same malfunctions of mind apparent in her actions and her recorded public statements call into necessary question if those matters of mentality impair her ability to interpret and apply medical knowledge.

    The most significant aspect of her case is what is drawn out about the character of people in the state. There are those sho have railed against others who have not supported Bosworth in her alleged battle against corruption. They charge Jackley with supporting corrupt activities, but make strident noise about the injustice committed by his prosecution of a violation of law that was clear from the evidence, which was clear to the jury. Their garbled minds do not grasp the irony in their demand for selective justice. On one hand they speak out against the apparent corruption in South Dakota government, and on the other had do not want corruption rooted out if it involves people within the embrace of their affections and affectations.

    Now on Facebook, there is a group trying to organize a protest against the judicial actions that haven’t turned out well for Bosworth. They cry about the effects of her conviction on her children, her Hutterite patients, and those who she has visited in times of emergency. They don’t mention those she fleeced with her land auction scam. her maligning and defaming of employees, or the falsehoods she has stated in her public statements.

    As one who has been involved in the logistics of getting food to people in distress, I am fully aware of how bona fide medical personnel think of doctors who fly into places such as Haiti and the Phillipines to see, or seem to, a few patients and then fly out after their humanitarian gestures have received some publicity. Under such emergencies, the medical treatment that counts is when doctors and nurses take up the full task of diagnosing, treating, and following up on the multitudes of patients who are processed. They find the people who drop in on an ego trip nuisances, not welcome helpers.

    Bosworth must have some abilities, if she successfully completed medical training. She may need help in removing those distractions of mind that interfere with the effective application of that training. But in the meantime, rather than seeing that she gets the help she needs, some of her supporters will demonstrate against one of the few cases in this state where corruption has been attended to. In effect, they are coming out in support of selective justice and raise their voices in defense of corrupt practices.

  12. As far as sentencing goes, as delusional as she is, she was clear on her intentions from what I have read. That should not get her a get out of jail free card. What the court should do is sentence her and while she is incarcerated, provide an intense in patient mental health treatment program. When successfully completed, she would then finish her term and be put on probation to make sure the treatment is still working. Maybe with a combination of meds and outpatient attention, she could go back to her field. That decision should be made by the boards that review doctors and their credentials. She should have some way of paying back those that she stole from and that could be addressed as well.

  13. Deb Geelsdottir

    When Jerry said, “The big sigh of relief should come from the fact that Bos may get the mental help she needs.”, he nailed it. That help could be of significant value to her children. The continued absence of husband Haber is a boon too. If the courts can’t include mental health work in her sentence, perhaps the medical board will make it a prerequisite for her medical license.

  14. Douglas Wiken

    Probation with condition of mental health care if that is necessary. I fail to see the significant harm that her political actions caused. Had she gotten the nomination, that might be another can of worms, however. South Dakota has poorly designed forms which also causes problems. Some states just have something like a $200 filing fee. That might make more sense than hiring people to circulate petitions, etc. etc.

  15. Douglas Wiken

    Regarding debate technical proof or whatever. Some of you might enjoy what my debate partner and I did too many years ago. The topic was something like, “Resolved: Funding for the United Nations should be substantially increased.”

    The negative teams went after all the terrible waste in the system. My partner and I argued that the aid could be substantially increased just by eliminating the waste. Some judges really liked that twist and others not so much.

  16. tara volesky

    You guys do not know what you are talking about. I am very disappointed in you Mr. Newquist, but in the mean time keep having fun slandering the Dr.

  17. Good news for the Mike Rounds club that wants his sorry little behind in the jailhouse, J. Dennis Hassert, the former republican speaker of the house just got indicted on federal money laundry charges. It takes time, but somewhere down the line, the egg roll will make the big time. Me, I will be sitting there watching and laughing my ass off at the little stinker dressed in orange, gwhahahaha.

  18. mikeyc, that's me!

    I feel sorry for the jury.
    Pizza Ranch? Disgusting.

  19. There will be an opening time slot on TLC now that 19 and Counting has been dropped. All the antics, all the schemes, all the playing to court of popular or extreme opinion and continued news documentation could be the auditioning for a replacement “reality” show. It’s got God, guns, flags, conspiracy, cleavage, pseudo conservatism and enough drama to fit the bill. Annette and Chad aren’t going to hustle money in any normal situation, you know. We can watch her therapy for narcissistic personality disorder one moment and then watch the therapeutic exercises undone by the con man husband’s next scheme for fundraising the next moment. SD has been watching it for awhile anyway. What would the title be?

  20. Bob Newland

    I have spent time with Dr. Bosworth, and have engaged her in conversation including a fairly wide smattering of topics. I like her, as I am sure most would with similar history. I don’t know if her decisions at various steps were hers alone, or hers after consultation. If it’s the latter, which I suspect, then I suspect some of those whom she consulted of giving her bad advice.

    I don’t know her consultation team, and can’t assess their expertise or motivations. I suspect the former is generally weak and the latter, …, well, arguable.

    She has produced a large body of evidence concerning her beliefs, and exposing some elements of instability. I think a mental evaluation with such a lot of video in evidence, might not bode well for her.

    I don’t think she’s unstable. At least not in comparison with me. I think she may have thought she could change the world and grew impatient when the world changed in the wrong direction.

    She’s not a threat to public safety, IMHO. She’s provided some entertainment for a couple of years. I hope she continues to be able to practice medicine.

  21. This thread looks amazingly like similar threads over on the Sphincter’s fake blog. Please count to three, look at your post to evaluate if you are arguing or quarreling before you hit post.

    Much of this is really below what this blog normally stands for. And Cory, when it comes to your commentary about Ms. Bosworth you sound a helluva lot like the Sphincter. Far, far below your normal demeanor.

  22. according to the commercial playing at movie theaters, the good doctor can cure depression with magnets. i wonder if she’s wearing them now.

  23. Mr/s rwb, what is the blue link to this Sphincter blog? I would like to read more about Dr. Bos if there is a blog dedicated to it or giving more coverage or alternative points of view. Is it the young Dr.’s own blog, given the medical type name? Do you know how to paste the blue links to it?

  24. Bob, the defense should call you as a witness during the sentencing, or at a minimum you should write a pile of letters to this Judge Brown.

  25. Grudz when was the last time you and Bob shared breakfast and had a good visit?

  26. Ms. Lynn, we visit often but our taste for breakfast eateries have diverged and Bob now prefers different ones than I. Plus, I can’t get out as much anymore. But you would not believe how many of the worlds’ problems (apostrophe intentionally placed, Bob) he and I have solved over some stout Joe and some stacked high patties of sausage with all the fixings.

  27. Dave. Baumeister

    I wonder if it would be illegal if we did a 50-50 pool on the sentence with half the money going DFP? Let’s ask Chad and Annette to handle the details!

  28. I have called Mr. Haber to ask about where to send monies to support Dr. Bos. It was a message mail recording so I gave him my bank information to process.

  29. Dave, I suspect that if commenters organize a betting pool on Bosworth’s sentence on this website (and especially if I get any of the money), the entrenched powers will send black vans filled with intimidating agents to interrogate you, then arrest me right after the Aberdeen city election (my name is still on the ballot) and prosecute me under SDCL 22-25A, our Internet Gambling statutes. Since it would be my first offense, I’d get a Class 6 felony, just like Annette… and they’d take my blogging license.

  30. Magnets no good, Scott. She’s not depressed, she’s “devastated.”

  31. Really, RWB? Let the others fight; give me an example of where I’ve (a) gotten anything factually wrong and/or (b) stepped off the rails. I tried to give the defense credit for coming up with a workable argument, though the lawyers evidently couldn’t make up for the overwhelming facts they had against them.

  32. I’ve never been a fan of Bosworth. I believe she is guilty of the charges. I also believe Arends perjured himself and was deeply involved in promoting Boz for the job of tool for the party.

    Contrary to the low info attitude of some regulars here who’ve shown a higher level of intelligence than their posting here, this trial is not about the fraud perpetuated through the Haber scams and as such the verdict does not indicate her guilt in those areas.

    Brian Gosch was appointed and as such it was repeated to to me, the prince couldn’t be found for any low level activity in 2008 such as carrying petitions or legwork expected of a candidate. We do know he was capable of notarizing his own petitions and when that was taken to court, the very person bringing it was threatened with court costs for daring to intimidate the elite.

    Those here commenting on Bosworths flaws in character being worthy of her conviction have flushed any hint of judicial sanity out the door.

    Newland is right on. The prosecution will also be proven not worthy of a paycheck when this comes back from the supremes.

  33. I expect Dr. Bosworth to file a malpractice suit against her former attorney Joel Arends since he’s the one who notarized her signatures on the petitions even though he was out of the country with her when they were circulated by someone other than her. Putting one’s name on the oath that gets a client convicted of a felony isn’t crack lawyering by anyone’s definition.

    She’s not a convicted felon yet though, Cory. Nothing is final until the sentencing is completed and either the appeal time has expired or the appeal, once taken, has been ruled upon unfavorably. For example, though Ken Lay of Enron fame was found guilty by the jury he died of heart disease before being sentenced. In the eyes of the law he was not convicted and died an innocent man. It’s not final till it’s final.

  34. It seems our young friend Mr. Hickey may be making the claim that these oaths are not the material of which he’s made, either.

  35. I wonder of that will be 2 felony charges against Mr. Hickey. Mr. Jackley needs to be fair and square like he was with that pretty young Dr. Bos.