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 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:
- The statutory definition of perjury requires that the false statement be made in a “material matter.”
- “Material” means influencing some official action, in this case, then-Secretary of State Jason Gant’s decision to validate Annette Bosworth’s nominating petition.
- 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.
- 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.
- 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.
- 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.
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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.