The trial of killer Attorney General Jason Ravnsborg takes a constitutional twist, as the wife of the man he killed invokes Marsy’s Law to stop Ravnsborg from dragging her husband’s medical records into court.
Ravnsborg killed Joe Boever on Highway 14 west of Highmore last September 12. Ravnsborg was on his phone for much his drive from Pierre to Redfield and back that day. Ravnsborg’s phone records show he was accessing various websites, including this blog, immediately before he hit Boever with his car. The police report shows Ravnsborg’s car was on the north shoulder of Highway 14 when he hit, dragged, and killed Boever, who was walking with a lit flashlight. Ravnsborg now faces three misdemeanor charges: careless driving, driving out of his lane, and operating a motor vehicle while on his phone. To escape these charges, Ravnsborg is making the radical claims that the police report is wrong, that he hit Boever in the middle of the road, and that Boever was suicidally depressed and on drugs and jumped in front of Ravnsborg’s car.
Judge John Brown has called for an in camera (i.e., in his chambers, not public) review of Boever’s medical records.
Comes now Jenny Boever, Joe Boever’s widow, to contend that releasing her husband’s medical records to Ravnsborg would violate her constitutional rights as a crime victim:
Jenny Boever, the estranged wife, is claiming a Marsy’s Law protection over her husband’s psychological and psychiatric records.
“The records sought by the Attorney General have a high likelihood of disclosing sensitive details about Jenny,” her attorney, Scott Heidepriem of Sioux Falls, wrote in a letter to the judge that was publicly filed Tuesday.
…Heidepriem’s letter asks that the records receive “the utmost protection” against disclosure.
“As the special administrator of Joe’s estate, Jenny has the right to claim the psychotherapist-patient privilege over Joe’s records,” Heidepriem wrote.
“In short, Jenny is entitled to substantial privacy rights pursuant to the South Dakota Constitution, and is entitled to claim privilege and protect the disclosure of psychological records on Joe’s behalf under statutory law and notions of substantive due process,” Heidepriem wrote [Bob Mercer, “Widow of Ravnsborg’s Victim Wants His Mental-Health Records Kept out of AG’s Criminal Trial,” KELO-TV, 2021.08.11].
“Marsy’s Law” is the nationwide vanity project of California billionaire and drug user Henry T. Nicholas, who bought his way onto the South Dakota ballot and got Kelsey Grammer to persuade us to vote for a constitutional amendment largely redundant with statutory victim protections South Dakota enacted in the 1990s. Nicholas’s passion for writing his poor dead sister’s name into every state constitution has increased criminal justice costs in South Dakota, increased hardship for inmates, and shielded police from accountability.
“Marsy’s Law” is as shoddy a law as Jason Ravnsborg is a lawyer and human being. But there it is, now enshrined in Article 6 Section 29 of the South Dakota Constitution. It defines “victim” to include the spouse of a victim killed or incapacitated by a crime. Three of its enumerated rights appear to apply to Jenny Boever’s claim:
- Section 29(1) requires “respect for the victim’s dignity.” Subjecting Mrs. Boever to allegations that her husband was depressed, on drugs, and suicidal may be interpreted as harming her dignity.
- Section 29(5) prevents disclosure to the public, the defendant, and his lawyer “information or records… which could disclose confidential or privileged information about the victim.” If Joe Boever’s medical records contain any information about his wife, she has a constitutional claim to block release of those records in court.
- Section 29(6) gives victims a seemingly absolute right to privacy, allowing them to “refuse an interview, deposition or other discovery request….” Ravnsborg and his lawyer thus cannot require Jenny Boever to give any information about her dead husband.
I would like Jenny Boever to prevail in her attempt to keep Ravnsborg from dragging her husband’s reputation through the mud the way Ravnsborg dragged the man’s body across the pavement. But her challenge raises two key questions relative to the crime victim’s bill of rights:
First, is Jenny Boever really the victim of a crime? Remember, Ravnsborg is not being charged with killing Joe Boever. The three charges—careless driving, driving out of the lane, and driving while phoning—all stand independently of whomever or whatever Ravnsborg hit. Ravnsborg’s lawyer could argue that no one has standing to invoke crime victim’s rights in this trial because the crimes before the court have no victim. (Of course, if the defense argues there is no victim in this crime, then the defense loses its justification for asking for the victim’s medical records.)
Second, and more importantly, can the crime victim’s bill of rights supersede the defendant’s right to due process? The charge of driving out of the lane hinges on the location of the impact: did Ravnsborg hit Joe Boever on the edge of the road or in the driving lane? Ravnsborg’s argument rests on thin evidence—a bolt found in the road—and thinner supposition—he claims debris would have been blown to the side of the road by a light breeze and by semis (note: semis create vortices that swirl debris around, not straight-line winds that neatly sweep dirt in the one direction the defense needs to establish). Introducing medical records establishing a suicidal state of mind days or weeks or months before the crash does not prove anything about what happened at 10:24 p.m. September 12, but it contributes to the reasonable doubt the defendant needs to make the judge think, Gee, maybe the defendant really was in the driving lane. It’s a grasp at a straw (and remember, even if it weighs on driving out of the lane, the location of the crash doesn’t weigh on Ravnsborg’s careless and phone-y driving), but under due process, a defendant is entitled to grasp at straws. Should a victim of a crime be able to prevent a defendant from accessing evidence that could lead to his acquittal?
This question of due process versus victim rights was exactly the argument guest columnist Chad Nodland raised about Marsy’s Law back in 2016. Nodland offered an example of a case in which a defendant could use an alleged victim’s medical records to disprove the victim’s claim that the defendant had broken her nose.
I still maintain that Judge Brown should refuse to allow Joe Boever’s medical records into this trial. We can argue irrelevance to the charges at hand without having to dig into victim rights, because the crimes under consideration have no victim. The thin allegation that the victim jumped into the road gains insufficient weight from past medical reports to outweigh preponderance of evidence gathered at the scene of the crime by experienced law enforcement professionals indicating that the crash occurred at the edge of the road, outside the driving lane. Ravnsborg’s straw is too thin to keep him afloat.
But Jenny Boever’s invocation of South Dakota’s crime victim’s bill of rights opens the door to a high-profile test of Marsy’s Law against defendants’ due process. If Judge Brown grants Jenny Boever’s request, Ravnsborg could easily delay his trial by appealing to the South Dakota Supreme Court, contending that Marsy’s Law is infringing on his right to a fair trial. If Judge Brown rejects Jenny Boever’s request, she could take the state to court, claiming that it has failed to uphold her rights as a crime victim.
These legal questions are perhaps not as important as the plain fact that Jason Ravnsborg killed a man and should not be our state’s top lawyer. But we need to answer these questions, so we understand how the rights we have written into our constitution affect due process for all citizens… even SOBs like Jason Ravnsborg.
Hey, Republicans lie like rugs, they get away with murder.
I too initially wondered: “is Jenny Boever really the victim of a crime?” But a few nuances seem to add substantial weight to Ms. Boever’s argument that she is indeed a crime victim.
First, if I understand Marsy’s law correctly, there is no requirement that some defendant be convicted of a particular crime to trigger the victim’s rights law. Surely, victims of unsolved crimes are most likely covered by this law. Hence the decision not to charge Ravnsborg with manslaughter seems only a factor, but not a controlling factor in determining whether killing him constituted a crime.
Second, as we learned from the O.J. Simpson case, the determination not to charge Ravnsborg doesn’t mean he did not commit a crime by killing Boever. Rather it only means that the prosecution determined it could not present enough evidence to satisfy the “reasonable doubt” standard required for a criminal conviction. OJ’s acquittal did not mean a jury found him to be inbnocent of the crime of killing his spouse, rather it meant the prosecution simply was unable to prove guilt. The subsequent civil case, however, established by a preponderance of the evidence that OJ was indeed guilty of of the crime of killing his spouse.
Finally, it would appear that Marsy’s law is similar to, or perhaps even weaker than, civil law in that there apparently is no express requirement that the alleged crime be established by evidence beyond a reasonable doubt before the court can issue an order protecting a purported victim. Indeed, it may be that a mere allegation (perhaps probable cause?) of a criminal homicide may be enough to trigger the law’s protection of purported victims like Ms. Boever.
As Cory points out, however, the above analysis is certainly subject to a defendant’s federal constitutional right to due process of law.
Cory. This is an outstanding “emotional word picture”, worthy of any pulpit. Bravo!!
“I would like Jenny Boever to prevail in her attempt to keep Ravnsborg from dragging her husband’s reputation through the mud the way Ravnsborg dragged the man’s body across the pavement.”
Interesting sad case of how a man lost his life. Makes one wonder if the driver was Native or a man of color, the case would be cut and dried and he would be unfortunately behind bars.
You got that right Lottie; someone of color, living in poverty, or with priors would be history.
Bear, I wonder about the same thing. I feel weird even saying that the widow may not be a victim, because everyone recognizes that Jason Ravnsborg killed her husband. The Boevers are clearly victims of Ravnsborg’s bad behavior.
But we’re talking law, not moral responsibility. Marsy’s Law declares a person a “victim” of a crime and assigns that person broad rights which may override a defendant’s right to due process. Victims can invoke those broad rights even before a court has established that a crime has taken place. If a crime takes place, but a prosecutor doesn’t have the evidence to prosecute the crime, can any court rightly say a crime has taken place? Absent a court’s clear ruling that a crime took place, can we justify assigning special rights to a victim of the unestablished crime?
Rather it only means that the prosecution determined it could not present enough evidence to satisfy the “reasonable doubt” standard required for a criminal conviction.
Could the prosecution have been slightly influenced in determining which charges to make based on the fact the defendant is the prosecutor’s boss?
Also, as any ordinary citizen can attest, cops stack every charge they can think of on top of whatever the original charge may have been.
In my view Cory, yes. Indeed, as noted earlier, many crimes are unsolved (i.e. a prosecutor doesn’t have the evidence to prosecute the crime). See e.g., “If you’re murdered in America, there’s a 1 in 3 chance that the police won’t identify your killer”
https://www.npr.org/2015/03/30/395069137/open-cases-why-one-third-of-murders-in-america-go-unresolved
Not if either a defendant or the state disputes the fact that a crime occured. In that case the dispute would have to be resolved by a court, which would include finding that a crime took place.
Here, that seems to mean Judge Brown will have to decide whether a preponderance of the evidence establishes that Boever was a victim of any one or more of the three crimes charged, or of an uncharged crime. In other words, did any crime contribute to the death of Boever. For example, if the court finds that illegally looking at a cell phone to read blogs, or driving outside the required lane, or careless driving, contributed to the cause of death then it would seem that Boever was a victim of that crime and that Ms. Boever would be entitled to relief regardless of Mr. Boever’s alleged state of mind and suicidal behavior. Normally, if a death would not have occurred but for the criminal act, then it may not matter whether other factors contributed to the death.
And if I am not mistaken, the judge could also find that a preponderance of the evidence (rather than evidence beyond a reasonable doubt) establishes that Boever was the victim of an uncharged crime, such as manslaughter based on reckless driving.
Richard Benda’s ex-wife would not allow his autopsy report to be made public.
Mr Barth, I always figured that was something Jackley pulled out of his butt to protect the guv and other criminals.
Many others likewise thought, MFI !!
a) It is undisputed fact that the AG killed Boever.
b) It is very questionable why he wasn’t charged with manslaughter at minimum.
c) Deciding whether Mrs. Boever is a victim is an easy decision, until politics get involved.