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Hubers Not Guilty; Jury Helps State Pin GEAR UP Scandal Entirely on Westerhuis?

I was wrong. Stephanie Hubers, the only person facing prison time for charges related to the GEAR UP scandal, is not guilty of stealing anything, not from her former employer, the scandal-leveled Mid-Central Educational Cooperative; not from the GEAR UP program; not from the taxpayers. So sayeth a Sioux Falls jury; so must say we all.

Upsetting my prediction, the jury appears to have bought the defense’s portrayal of Hubers as a victim of her thieving, bullying boss, Scott Westerhuis:

“We all know now that Scott Westerhuis was the worst kind of monster. He was a control freak who marketed himself as a savior — but he was a destroyer,” [defense attorney Clint] Sargent said in his closing argument. “He didn’t have accomplices. He just had victims, especially those closest to him” [James Nord, “Jury Clears South Dakota Woman Accused in Embezzlement Case,” AP via Kansas City Star, 2018.06.29].

The defense may not have needed the bully argument. The defense may have only needed one word from Attorney General Marty Jackley in his closing argument:

Still, Jackley believes Hubers case is different. “She’s taking this money for doing nothing,” said Jackley. Use your common sense. It’s probably stolen money” [Allison Royal, “Jury Finds Stephanie Hubers Not Guilty in GEAR UP Case,” KDLT, 2018.06.29].

If taking money for doing nothing were a crime, Marty Jackley could prosecute Kristi Noem for cashing eight years of Congressional paychecks.

But… probably? Marty Jackley brings Class 4 felony charges of grand theft, each worth ten years in the pen, against a small-town clerk in an office where millions of dollars went missing, a business office subordinate who for some reason got to travel to a big national GEAR UP convention, for some reason was walking around at the crime scene of her boss’s murder-suicide and looking through evidence, and for some reason exercised power of attorney over Scott Westerhuis’s mother and handled his estate after his death, and then he looks a jury in the eye and says, “It’s probably stolen money”?

I don’t see probably in any of the quotes from Clint Sargent’s closing argument. I don’t think we’ll find probably in any definitions of “beyond a reasonable doubt,” the standard juries are supposed to reach in a criminal conviction.

Good grief! Did Marty Jackley want to lose this case?

Maybe. In a way, in losing to Stephanie Hubers, the state may not really have lost. By blowing the case, Jackley got the jury to bow to the state’s bigger argument, that Scott Westerhuis was the root, trunk, and branch of all evil at Mid-Central and that no one else, certainly no state employee or functionary or friend, bears any guilt for the GEAR UP scandal.

The Hubers acquittal is certainly good news for the remaining GEAR UP defendants, former Mid-Central exec Dan Guericke and GEAR UP director Stacy Phelps. Phelps’s attorney Dana Hanna has contended that Westerhuis was the thief and that Jackley is just “looking for scapegoats to take attention from the fact that the state was sleeping while Westerhuis stole $1 million from the taxpayers.”

With Jackley now a duck lamed by his primary loss to Kristi Noem, his loss on all three GEAR UP prosecutions could be the most politically convenient outcome for the Republican establishment: Let juries establish that there was no criminal conspiracy beyond Scott Westerhuis’s devious machinations, Jackley takes a mild bruising for once again not catching a bad guy, but the state contains the scandal again by putting all the blame on the dead guy and moves on without the stain of proven widespread rot.

Hubers is not guilty. The jury said so. That jury verdict may look like an embarrassment to the state, but it could be exactly the verdict the state wanted.


  1. Francie Ganje 2018-06-30 08:07

    How convenient for the Governor’s office, the South Dakota Department of Education and the South Dakota Board of Regents. The real culprit’s in this case have never been brought to heel. Just like the EB5 case, where millions of taxpayer dollars also went missing, the good old boys political network in South Dakota protects its own.

  2. Dana P 2018-06-30 08:49

    Dead men don’t talk. This helps so many, doesn’t it? (grrrrr)

  3. Loren 2018-06-30 08:55

    Not to echo what has already been said, but a lot of shady things seem to have been done by folks now deceased. Hmmm…

  4. Curt 2018-06-30 09:02

    Note that the jury did not find Ms Hubers “innocent”, just “not guilty” beyond a reasonable doubt. That adverb Jackley used – “probably” – contains all the doubt her attorney needed to beat the felony.

  5. David Newquist 2018-06-30 09:08

    People think I am exaggerating when I say there is an insouciance among the people in
    South Dakota concerning corrupt practices. The payroll list for the Gear Up scam includes some high-tanking people in the field of education, some of whom did not specify what work they performed for the money they received. Huber was fairly low on that food chain. It is very difficult to believe that she or others did not have a clue that they were participating in a scam to syphon off most of the money from a project intended to give some opportunities to disadvantaged children. The honors thesis published by Anna Madsen lays out clearly how many people and agencies. including the source of the funds, the federal Department of Education, chose to ignore some conspicuous evidence that the sharks smelled blood in the water and were swarming the Gear Up funds.

    In South Dakota, it was business as usual among a people who claim they have the highest work ethic in the nation.

  6. Porter Lansing 2018-06-30 09:24

    Thinking like a SF juror. (What jury consultant firm worked for the defense? Keep their card on file!!)
    “Sure she “probably” took some money that she didn’t earn but it wasn’t real money. It wasn’t like “church” money or something. It was Obama money. If Obama wasn’t watching out for it, this is what happens. Obama was giving away money to blacks like no tomorrow, anyway, so this little bit doesn’t hurt anybody, really. Besides, what juror wants this lady’s jail time pain on their conscience over just some far away Obama money? And … he did say “probably”. That really means, “Who cares?”
    NOT GUILTY by reason of indifference.

  7. mike from iowa 2018-06-30 09:46

    Tidies crime scenes up nicely to lay the blame with the deceased. Had someone/anyone in authority spoke up might the Westerhuis kids still be alive today?

    How many more dead kids will it take before someone in South Dakota’s one corrupt party government finds sufficient reasons to establish strong oversight measures?

    What is wrong with you wingnuts?

  8. Roger Cornelius 2018-06-30 09:47

    If “it’s probably stolen money”, who was the money stolen from”?

  9. grudznick 2018-06-30 09:49

    You have to wonder now if the other fellows get off too, what will become of the Education Department employees down the road? It is like Mr. Jackley is calling off the dogs on his way out the door.

  10. Donald Pay 2018-06-30 10:12

    Well, of course. Westerhuis was a Bill Janklow/Donald Trump bully, just on a lesser scale.

    People understand what’s going on here. When corruption comes from the top-down, why blame the poor lackey who gets paid to avert her eyes. Here’s the sad truth I picked up from years exposing corruption in South Dakota: very, very few South Dakotans have the moral courage to speak truth to those up the chain of command, let alone blow the whistle publicly. Doing so means you lose your job, and may have to leave the state. I think that’s probably true everywhere, but other states have better protections in their systems.

    From the sewage ash scam on down to the Agnico-Gilt Edge Superfund Site corruption, the fish rots from the head, and the head has been rotting in South Dakota through most of the last 40 years. It’s no wonder others cash their checks and look the other way.

    In the 1980s my ex-wife and I figured out there were a number of disgruntled, non-corrupt state employees who weren’t willing to blow the whistle publicly, and who had done as much as they could internally against top-down policy that seemed wrong to them. They would leak information to us so our organization could launder it and present it to the public and the press, who would then pick it up.

    That is one way to do it. It takes people willing to trust that the information will get out, but the source will never be divulged. It also takes long, long hours going through government files. Ughh.

  11. Roger Elgersma 2018-06-30 11:21

    You are very right Cory. They are keeping the company culture of the gag law that if you do corruption in South Dakota for the Republicans, you will go free.

  12. Judy Ryan 2018-06-30 12:04

    A bunch of crooks, as I see it!!! Very disappointing!!!

  13. Joseph J Voigt 2018-06-30 12:11

    When the state brought the case I figured they had more evidence. Plausible deniability especially in South Dakota and in education goes a long way.

  14. Curt 2018-06-30 18:04

    I wonder whether that word “probably” would have been uttered in Mr Jackley’s closing argument if the outcome on June 5 had been different.

  15. Roger Cornelius 2018-06-30 19:15

    South Dakota republican politicians and public servants must have access to a How To manual on how to beat corruption charges and just make them go away.

  16. Spike 2018-06-30 21:04

    There are so many strange twists and connections in the Gear up scandal it can sometimes seem unreal. Jackley and some of his DCI agents sitting in on USD Professor Damgaard’s presentations is on a long list of odd occurrences that surround Gear-up. A group of college students out investigated the offices of the SD attorney general AND the SD United States Attorney and the US Dept of Education OIG..??? Really….

    All reteoric aside. It was a bunch of good ol boys robbing the treasury. To pin all the theft on the dead guy is maddening to many. One voice not heard in this has been the parents of the students that participated in Gear-Up. They wanted the children to gain access to higher education. Not pay for Melmer, Keith Moore, Phelps, Huber and dozens of others excessive paychecks. Probably? She walked because they were ‘just’ native kids. They all knew exactly what they were doing, Werdell figured it out and Schopp fired her for speaking up. No justice here. None.

  17. Porter Lansing 2018-06-30 21:05

    @Roger … If this was the Old West, somebody would ride out and bring back the Marshall. Somethin’ stinks in Dakota Territory.

  18. Roger Cornelius 2018-06-30 21:34

    @Porter … When Mueller is done with Trump maybe we could bring him out to South Dakota to clean house.

  19. Porter Lansing 2018-06-30 21:38

    Next chance we get Mueller would be a great Justice.

  20. Kelly 2018-06-30 23:06

    You think Jackley is a poor prosecutor wait until you see Jason Ravnsborg.

  21. Debbo 2018-06-30 23:24

    I am So Glad I left SD.

    Minnesota is not perfect,
    but I am So Glad I left SD.

  22. leslie 2018-06-30 23:34

    Do u want an AG or Supreme Court justice or Leader of the Senate that plays politics, like republicans, or elect Democrats with ethics and values? Simple choice.

    Vote Tim and Billie. And nxt time vote for a Female President. Duh!

  23. Bill 2018-07-01 02:24

    The statute on receiving stolen property, SDCL 22-30a-7, says that she had to have received the money “knowing that the property has been stolen, or believing that the property has probably been stolen.”

    That’s why he used the word “probably”.

  24. Cory Allen Heidelberger Post author | 2018-07-01 07:06

    There’s a statute with “probably” in it? I can be convicted on a “probably”? Yikes!

    Even if an appeal to that statute was Jackley’s intent, I can see the jury not making the connection. Maybe the context would show that when he said, “you”, he meant Hubers, not the jury. But the fact that someone accepts money for doing little or no work does not lead to any common sense conclusion that the money is probably or certainly stolen. Again, Noem: she’s spent eight years in Congress doing nothing, yet no one can conclude that the tax dollars she receives as salary have been stolen by the party paying her (except for arch-Libertarians, and they say all taxes are stolen).

  25. Noelle 2018-07-01 09:06

    Gee! No wonder South Dakota Ranks #8th for “MOST CORRUPT STATES IN THE U.S.” 8 out of 50 is pretty corrupt!

  26. PlanningStudent 2018-07-01 09:10


    “With Jackley now a duck lamed by his primary loss to Kristi Noem…”

    Technically he would also be a lame duck if he had won, really he’s a lame duck no matter what path he chose since running for another term as AG wasn’t an option.

  27. Anne Beal 2018-07-01 11:30

    Until today I didn’t even know what Hubers looked like. Saw the photo of her looking like a good Lutheran Church lady, the type who can be counted on to produce the best and biggest hotdish at the potluck. The outfit was perfect.
    Add to that the defense’s implication she was too dumb to know what she was doing, and the jury bought it.
    This is how jury trials work, you know.

  28. Porter Lansing 2018-07-01 12:48

    Great lawyering Clint Sargent!! When a “guilty as hell” client walks, it’s Johnnie Cochran time. In June 2015, Clint was named South Dakota Trial Lawyer of the Year by the South Dakota Trial Lawyers Association.

  29. Darrell Solberg 2018-07-01 13:42

    It is so convenient for the state to pin all the blame on the dead guy….Benda, Westerhuis, but the questions still lingers with many, how did they die? Oh, it was by shotgun, but who pulled the trigger? Our majority party leaders are so good at covering everyone’s behind and getting away with it!!! God help us, I hope the voters are not continued to be snowed. South Dakota deserves better, this November don’t keep electing the perpetrators of these dubious actions (crimes).

  30. Michael L. Wyland 2018-07-01 16:42

    I was somewhat surprised that Hubers was acquitted. I expected her to testify against Guericke and Phelps in exchange for a very minor sentence, and I was very surprised she actually went to trial.

    I suspect that her legal bills easily exceeded any amount she was accused of stealing. I also believe it will be difficult for her to get another job in her field (school finance). She may have been acquitted, but she’s far from unpunished.

  31. Curt 2018-07-01 16:52

    If Ms Hubers were to pen a tell-all non-fiction account of her GEAR-UP experience, I suspect she could easily recover her legal expenses.

  32. Donald Pay 2018-07-01 16:55

    People like their pound of flesh. I understand they want someone to pay for the obvious criminality. But how about actually having a functioning government with checks and balances. You’ve got an AG who argued this case whose office signed off on a corrupt settlement agreement. No discussion. No hearings. No disclosure of any details. The crookedest deal in South Dakota history with a $30 million bribe from a Canadian mining company to the state and the EPA. And they promise, “no mining.”. Anyone believe that?

    When the crooks are the prosecutors, you know you have a problem.

  33. Cory Allen Heidelberger Post author | 2018-07-01 17:49

    Do I take David’s path, conclude that South Dakotans in general don’t care about corruption, and stop raising it as a campaign issue (it didn’t sell in 2014 or 2016), or do I take something like Donald’s path and focus voters’ attention not on the underlings who take advantage of the system but the big dogs who make the corruption possible?

  34. Cory Allen Heidelberger Post author | 2018-07-01 17:52

    PlanningStudent, your point is technically correct; however, a Jackley in contention to be Governor and to rain far greater terror on anyone who screws with the GOP would be less of a lame duck than a Jackley headed for private practice.

  35. Cory Allen Heidelberger Post author | 2018-07-01 17:53

    Curt, Ms. Hubers will probably need a ghost writer to make it a good read. Ms. Hubers, if you’re reading, I offer my services. We can negotiate my cut of the royalties.

  36. Debbo 2018-07-01 19:54

    No wonder South Dakota Ranks #8th for “MOST CORRUPT STATES IN THE U.S.”

    Good grief! What, WHAT goes on in the first 7 states?!?!?!?😲😲😲

  37. Debbo 2018-07-01 19:56

    If word got out that Hubers was writing a tell-all book about Gear Up, who thinks she’d live long enough to do it? I imagine some kind of fatal “accident.” Keeping her mouth shut keeps her alive.

  38. Timoteo 2018-07-01 20:57

    We can’t trust Jackley. We can’t trust state government. We can’t trust each other. This is just sad.

  39. grudznick 2018-07-01 21:55

    The paranoia on the alt-left in South Dakota rivals the levels rattling around in the brains of Ms. Hubbel and Ms. Nygaard, insaner than most that they are.

  40. Cory Allen Heidelberger Post author | 2018-07-02 16:19

    I disagree, Debbo. Consider how much I’ve opened my mouth. If the state of South Dakota practiced Putin-style executions of whistleblowers, I’d be dead by now. I contend that opening one’s mouth helps insulate one from retaliation, since the sudden silencing of a prominent whistleblower would draw even more attention.

    Ms. Hubers, call me. We may have a book to write.

  41. MJK 2018-07-03 07:53

    These are all interesting reads and I am too, saddened by once again, corruption in the state; allowing more big leaders and money mongers to go free (Ms. Hubers WAS the small potato in the pot). It is thievery at its best. I am going to pay attention in November and I pray all South Dakotans will do the same. The only way things will change in this state is if we change the roll call to those in public office. There are no winners here. A family with young children, was destroyed.

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