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Jackley Defending Langer and Greenfield from Drunkenness Charges

The Senate’s special committee investigating Senators Brock Greenfield and Kris Langer for legislating while intoxicated held its first meeting yesterday to set rules and arrange for testimony from witnesses of the Veto-Plus Day tomfoolery.

Among the signals that there is serious political manuevering afoot, former Attorney General Marty Jackley showed up at the hearing as Langer and Greenfield’s lawyer:

Five Republicans and four Democrats are scrutinizing what Senate Republican leader Kris Langer of Dell Rapids and Senate president pro tem Brock Greenfield of Clark said and did.

Former state Attorney General Marty Jackley represents them. Jackley objected several times Tuesday morning to Senator Art Rusch, chair of the investigation committee, challenging whether the Legislature had authority under state law and what evidence should be allowed.

…Jackley warned “the courts may need to get involved” if the investigation proceeded, but Rusch said the committee would go ahead.

Jackley later objected that he hadn’t received the Highway Patrol security videos. Rusch denied the objection [Bob Mercer, “Senators Begin Probe into Whether S.D. Republican Senate Leaders Were Intoxicated,” KELO-TV, updated 2020.04.22].

Part of me would like to see Jackley take this matter to court, where we might see more documents made public. However, a trip across Euclid to the courthouse or downstairs to the Supreme Court chamber would likely be a mere delaying tactic, at the end of which the Justices would rule unanimously that the Legislature is the sole judge of the qualifications of its members.

Jackley’s decision to defend Langer is interesting. Langer replaced Senator R. Blake Curd as majority leader in the 2019 Session in what looked like a sop to new Governor Kristi Noem after Curd had backed Jackley for Governor. Perhaps Jackley simply believes in everyone’s right to a fair hearing… or maybe Jackley is riding in to help Langer save her job and to leave an IOU for a primary reboot to boot Kristi in 2022.

17 Comments

  1. Nix 2020-04-22

    Boy, isn’t it amazing that in Aug. 2016
    Jackboot Jackley was in the process of trying to put Eric Hagen in prison for 10 years for possession of 10 lbs. of
    Pot, 10 years for conspiracy to possess
    and 7.5 years for Attempted Possession. 27 1/2 years. This was because he and Johnathan Hunt were
    Trying to get the Flandreau Indian tribe up and running with their Cannabis Resort. (A sovereign Nation)
    After the arrests and threatened lawsuit the tribe burned their product.
    And now, old Jackboot is defending
    2 folks for allegedly having a booze buzz at work.
    You just can’t make this up.
    I wonder what he thinks about the Lakota on the Pine Ridge starting their
    little Cannabis corporation?
    He should be overjoyed…..no booze on the Rez !

  2. Donald Pay 2020-04-22

    What Nix said is why I like attorneys. The best of them are paid killers. Pay them and they kill whomever you point them at. This time they are pointing at some Republicans jihadis in the Legislature. Now I think attorneys general (and attorneys in general) go overboard on their advocacy from time to time. Jackley’s hemp jihad is Exhibit A, but when you have to go to the mattresses, get yourself a killer.

    My politics are completely different from Langer or Greenfield, but if they are being accused of something that they may or may not have done, why not get themselves a hired gun who would rather obliterate the enemy with an AK47 than a plunk away with a BB gun.

    Look, whichever way this turns out, the Legislature is going to come out looking like the corrupt institution the Republicans have led it to become. I say, let’s go to the mattresses.

  3. Loren 2020-04-22

    I have no idea if anyone is guilty or innocent, but one sure gets the feeling that one must be a member of “the club” to participate. Talk about inbreeding…

  4. Scott 2020-04-22

    Based upon the reaction of the 2 implicated legislators and Jackley’s response, these 2 legislators seem to be implicating themselves that what they done may not have been good.

  5. bearcreekbat 2020-04-22

    I don’t understand why Jackley would be criticized for simply doing what any decent ethical lawyer should do – provide legal representation within the bounds of the law to someone in need.

    And “A lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” SDCL 16-18 Rule 1.1(b).

    Speculation about some nefarious motive about Jackley or any other lawyer for simply doing his job belongs in the bag of tricks used by the likes of conspiracy mongers like Donald Trump, Q-Anon, Fox “News” hosts like Hannity, Waters, Ingraham, Pirro, et al, Alex Jones, and a whole slew of lesser known opportunists and crackpots.

    https://www.nytimes.com/interactive/2019/11/02/us/politics/trump-twitter-disinformation.html

    If Jackley violated the law, or if there were some actual factual basis for identifying an improper motive, that could be a different story. But here, the speculation appears premised entirely on Jackley’s past political endeavors. Such speculation should be summarily rejected by anyone who finds similar speculation by the above mentioned sources lacking in credibility and offensive.

  6. Cory Allen Heidelberger Post author | 2020-04-22

    I do not criticize Jackley for taking on this case. I’m just surprised there’s any role for legal counsel at all at this stage. It’s not a trial; it’s a Legislative investigation. I would think the Senators involved would be the top experts on their own rules of conduct.

  7. bearcreekbat 2020-04-22

    While true that “it’s not a trial” (and I don’t see how this is even relevant to the speculation/conspiracy question) in the sense of Langer and Greenfield being charged with a crime or civil misconduct in our courts, it appears to be an adversary proceeding in which a government entity threatens the use of governmental power to sanction these individuals for alleged misconduct. I would be hard pressed to come up with another circumstance in which the threatened individual is in more need for legal help. And once the governmental body finishes its sanction activities there may well be a role for judicial review of the record and the constitutional or statutory legitimacy of whatever governmental decision follows.

    Indeed, a key function for lawyers is to assist clients in dealing with threatened governmental actions, whether by an agency or a legislative body.

    And whether one intends speculation about improper motives to be criticism, such speculation not only will likely be read as implied criticism, it also encourages more overt criticism from others.

  8. nix 2020-04-22

    BCB,
    “ I don’t understand why Jackley should be criticized for simply doing what any decent , ethical lawyer should do. Provide legal representation within the bounds of the law to someone in need”.
    Does that mean that when he tried to
    put a person in prison for 27 1/2 years
    for something that is no problem in
    a different zip code, that he was just doing what any decent,ethical lawyer
    would do or was he using that poor bastard as a stepping stone to the Governorship.
    The guy is a rat.

  9. bearcreekbat 2020-04-22

    nix raises an unrelated question about a criminal prosecution Jackley apparently was involved in when serving as the AG. I know very little about the particular case that nix refers to and have no basis for negative speculation about Jackley’s motives.

    I do know, however, that our elected legislators decide what constitutes a crime in this State and although I believe many of these legislative choices are abhorrent, such as our stupid and draconian ingestion laws, I can hardly impugn the motives of any AG or any prosecutor for enforcing such laws. Likewise, I may strongly disagree with a prosecutor’s exercise of discretion in seeking a particular sentence authorized by (and sometimes required by) stupid laws, yet that too gives me no basis to question that prosecutor’s ethics or motives.

    If voters elect such cruel and thoughtless people to the State legislature, and those elected representatives enact bad laws or leave bad laws on the books then that is on voters, not the AG or prosecutors. All lawyers, including the AG and prosecutors have a duty to uphold the law. As far as I am aware, Jackley has complied with that duty as an AG and in private practice. If there is contrary information out there showing that Jackley breached that duty, it should be made public and Jackley held accountable. Otherwise, all I am hearing at his point is understandable but misdirected frustration.

  10. mike from iowa 2020-04-22

    For extra credit, here is another case where Jackley, the prosecutor, appears to have bent over forwards to oblige a close friend of South Dakota’s guv, guy named Joop Bollen. Then Mr Jackley may have misrepresented the statute law on why he didn’t seek any jail time for a guy facing 5 felonies.

    https://www.capjournal.com/opinions/columnist/jackley-and-bjorkman-respond-to-bob-mercer-story-on-no-prison-sentence-handed-to-bollen/article_4bd4b784-9840-11e7-8b73-83d470d4c2a5.html

    But, what do I know?

  11. bearcreekbat 2020-04-22

    mfi, the Bollen prosecution is an interesting case and Bjorkman questioning Jackley’s charging decision is certainly reasonable. I note, however, Bjorkman seemed to be careful not to allege a violation of law, rules or ethics. Rather, according to the article you posted, he questioned the appropriateness of Jackley’s exercise of discretion as well as the accuracy of Jackley’s explanation for the charging decision; all very legitimate inquires. The judge can even order the prosecutor to provide whatever evidence s available to assist in deciding whether to use that conduct in the sentence.

    About the only disagreement I have with Bjorkman is his statement that “After all, how could Mr. Jackley or anyone else expect a judge to order someone to prison when the prosecutor himself doesn’t even ask for it?” In my experience judges will often reject a prosecutor’s recommendation and order a much more severe sentence, including incarceration when “the prosecutor himself doesn’t even ask for it.” Judge’s are free to make an independent evaluation of the appropriate punishment and do not hesitate to impose a more severe sentence than recommended by a prosecutor in many cases. And somewhat surprisingly, a judge may take into account uncharged conduct and increase the punishment if the judge finds the preponderance of the evidence supports a determination the defendant engaged in hat conduct.

    Bjorkman also raised a couple points that I have never researched about the judge’s authority to impose jail time under the specific offense of conviction, but generally I have no real disagreement with any of Bjorkman’s other comments.

  12. mike from iowa 2020-04-22

    Many thanks, again, bcb.

  13. Bob Newland 2020-04-22

    No one gets what they deserve in Gilead.

  14. grudznick 2020-04-22

    Mr. H, you fail to understand that Senators, in general, while often better than their more ignorant Representative counterparts, are still usually not experts in anything at all, especially related to the legislatures. This isn’t the days of Joe Barnett the Aberdeenite, it is the days of Brock Greenfield, the Clarkistonian.

  15. Debbo 2020-04-22

    I don’t find it surprising that folks might wonder if there are political considerations involved in this endeavor. The SDGOP plays politics with most everything they touch. I’d be more surprised if this was an exception.

  16. bearcreekbat 2020-04-23

    In my haste to add a sentence to my comment at 19:09 about Jackley and the Bollen sentencing before the edit time ran out I inadvertently placed the sentence at the end of the first paragraph where it makes absolutely no sense, instead of at the end of the second paragraph.

    The last sentence in the 1st paragraph should be disregarded and a corrected second paragraph should read:

    About the only disagreement I have with Bjorkman is his statement that “After all, how could Mr. Jackley or anyone else expect a judge to order someone to prison when the prosecutor himself doesn’t even ask for it?” In my experience judges will often reject a prosecutor’s recommendation and order a much more severe sentence, including incarceration when “the prosecutor himself doesn’t even ask for it.” Judge’s are free to make an independent evaluation of the appropriate punishment and do not hesitate to impose a more severe sentence than recommended by a prosecutor in many cases. And somewhat surprisingly, a judge may take into account uncharged conduct and increase the punishment if the judge finds the preponderance of the evidence supports a determination the defendant engaged in that conduct. The judge can even order the prosecutor to provide whatever evidence s available to assist in deciding whether to use that conduct in the sentence.

    Another interesting but somewhat unsettling tidbit about a judge’s sentencing authority is that a judge may increase a sentence up to the statutory maximum for the crime of conviction relying on uncharged conduct, conduct alleged in dismissed charges, or charges acquitted by a jury. For a discussion of this frightening prospect see:

    https://theappeal.org/you-can-be-sentenced-even-if-you-were-acquitted/

    The article linked by mfi says that Bollen pleaded guilty to a Class 6 felony with a maximum sentence of 2 years in prison. Unless another statute actually restricted the Judge’s sentencing discretion, the Judge could have sentenced Bollen to a full two years in prison regardless of Jackley’s recommendation.

    Jackley did try to justify the Judge’s sentencing choice with SD’s “presumptive probation” statute at SDCL 22-6-11. There is an exception, however, in this statute:

    . . . The sentencing court may impose a sentence other than probation or a fully suspended penitentiary sentence if the court finds aggravating circumstances exist that pose a significant risk to the public and require a departure from presumptive probation under this section. . . .

    Four dismissed counts, along with the uncharged conduct described by Bjorkman, likely would have sufficed as evidence of aggravating circumstances posing a significant risk to the public.

    One might disagree with Jackley’s charging decision, or plea agreement, but should at least acknowledge that these decisions eliminated the risk of no conviction at all if the case went to trial on other charges or the dismissed counts. The ultimate sentence, however, was the responsibility of the Judge, not the AG.

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