Volesky: Janklow prosecutor bold

By Joe Kafka, Associated Press Writer | Wednesday, September 03, 2003

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PIERRE — A veteran defense attorney said Friday that it is bold for Moody County State's Attorney Bill Ellingson to charge U.S. Rep. Bill Janklow with a felony for a fatal traffic accident.

Ron Volesky of Huron, a former legislator, said the prosecutor easily could have ducked filing the charge himself by calling a grand jury to get indictments.

"In a lot of high-profile cases like this, maybe where the state's attorney wants to shelter himself a little bit from any political fallout, he can use a grand jury," said Volesky, who ran unsuccessfully last year for attorney general after failing to win the Democratic primary for governor.

"A prosecutor can say he's charging you based upon what the grand jury has decided, rather than what he has decided as a prosecutor," Volesky said. "I would consider this a bold move by Mr. Ellingson. He obviously has strong convictions that the facts warrant the charges."

The most serious charge facing Janklow is second-degree manslaughter, a felony that could bring a 10-year prison term.

Jim Meader, a government professor at Augustana College, said it may not be possible to have Janklow's trial in Flandreau because that is where Janklow was raised. Seating an impartial jury in Moody County may be difficult, he said.

Most rural counties have many elderly residents who would have opinions about Janklow and whether he is guilty, Meader added, suggesting Sioux Falls as a potential trial site. "Maybe the best bet would be in Minnehaha County because that county has had the most influx of new residents who haven't been around for most of Janklow's political career," he said.

Although Janklow is the best-known politician in the state — and made many friends and foes during four terms as governor — Volesky said the congressman can get a fair trial. Despite Janklow's notoriety and the huge amount of publicity about the crash, impartial jurors can be found, Volesky said.

"The issue is, can they judge this case fairly," he said. "People in South Dakota are fair, and I think most of them will say they can decide this case on the facts, not upon who Mr. Janklow is or what they may have read in the newspaper or heard on television or radio."

Jurors need not be ignorant about Janklow or the circumstances of the case, he said. They just have to have open minds and consider all of the facts in an unbiased manner, Volesky said.

Second-degree manslaughter is defined in state law as reckless killing, Ellingson said in a written statement.

The state Supreme Court has said manslaughter is not an appropriate charge when the only evidence to support reckless conduct is a traffic violation, according to Ellingson.

But Ellingson, who also has charged Janklow with speeding, running a stop sign and reckless driving, noted that the Supreme Court has upheld manslaughter convictions in cases where jurors have decided that a person's conduct amounts to "a conscious and unjustifiable disregard of a substantial risk."

The Associated Press reported in 1998 on a state Supreme Court ruling in which the justices upheld a second-degree manslaughter conviction of a motorist who killed two workers in a construction zone on Interstate 90. Although the man's attorney argued that the 1996 accident involved a split second of negligence and was not manslaughter, the high court said wandering 1½ feet over the center line was reckless.

Signs in the area recommended that motorists not exceed 55 mph, although the actual speed limit was 75. The motorist's speed was estimated at 62 mph to 68 mph, and the justices said that amounted to a conscious disregard for the safety of construction workers.

State legislators later passed strict laws dealing with construction zone speeds and fines. One of those laws, engineered by Janklow, allows state Transportation Department employees to enforce speed limits in construction zones.