Pleas launch legal process

| Monday, September 29, 2003

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December jury trial set for Janklow

By Kevin Woster, Journal Staff Writer

U.S. Rep. Bill Janklow's not-guilty pleas Friday to second-degree manslaughter and lesser charges don't mean he is denying his role in the death of a motorcyclist Aug. 16, several South Dakota lawyers said.

The pleas — which did not surprise lawyers who were contacted Friday in Sioux Falls and Rapid City — merely begin a process that could lead to a jury trial in December or a plea agreement between Janklow and the prosecution.

"The plea is not guilty, but that doesn't mean he's saying he didn't do anything," Sioux Falls lawyer and longtime Janklow friend Jeremiah Murphy said. "That just says let's go to court and talk about it.

"We're not looking at a guy who says he didn't do wrong. But you can't just fall down in front of the legal system. He did what anybody reading your paper would do in a similar situation. They'd plead not guilty."

Janklow faces second-degree manslaughter and three lesser charges connected with an Aug. 16 accident that killed Randy Scott of Hardwick, Minn. Janklow has admitted that he ran a stop sign on a county road south of Flandreau and collided with Scott, who was riding a motorcycle.

Janklow's pleas Friday at Moody County Courthouse in Flandreau begin a legal process that could result in a trial but also could lead to a plea agreement on one or more of the charges. Along with manslaughter, Janklow is charged with reckless driving, speeding and failure to stop.

Murphy said Janklow might already have pleaded guilty to one or more of the lesser charges if they had been offered alone. The manslaughter charge is a far different proposition, he said.

"They had four charges, and they threw all of them at him," Murphy said. "He might have pleaded to a couple of them."

Rather than entering a plea, Janklow and his lawyers could have asked for a preliminary hearing to make the prosecution justify its charges before Circuit Court Judge Rodney Steele. Rapid City lawyer Patrick Duffy said such a hearing "forces the prosecution to show his cards" in ways that can benefit the defense.

"Normally, a criminal-defense lawyer would never waive a preliminary hearing without something in return," Duffy said. "They've waived an awful lot. Normally, something has to be received for giving that up."

In showing the merits of its case to the judge, the prosecution also reveals witnesses and evidence that could be used at trial. The evidence and testimony can be unpleasant for the defendant initially but valuable for the defense ultimately, Duffy said.

"Some might say they just didn't want to have the bad publicity, but the smart thing is to take all the bad publicity up front and sort it out," Duffy said. "You don't want any surprises later on."

In exchange for making a direct plea rather than asking for a preliminary hearing, prosecutors might agree to concessions, Duffy said. Those could include delays in the start of a trial, remaining silent at sentencing or supporting a suspended imposition of sentence, Duffy said.

A suspended imposition of sentence could involve probation or an actual jail sentence at the judge's discretion butalso could ultimately result in Janklow's record being cleared.

Rapid City lawyer Jim Leach said speculation about the motives behind Janklow's decision to waive the preliminary hearing is counterproductive.

"You can't know why. And I think it's probably in the interests of a fair trial that people refrain from undue speculation," he said.

Murphy said waiving the preliminary hearing was the right move. It allowed Janklow to save his family several days of media "feeding frenzy" as the prosecution presented witnesses.

"Why go through that?" Murphy said. "At least his family isn't going to be beat up by it. He's really concerned about his family."

Leach said he was surprised that Janklow waived the hearing, which also gives the defense an opportunity to question the charges. A judge at the hearing could then reject some or all of the charges, which sometimes happens.

"It's unusual, but it has happened to me often enough that I think it's a real possibility in a case," Leach said.

Leach said he wasn't surprised by Janklow's plea. And he said the public shouldn't read too much into it.

"He's entitled to put the state to the burden of proving its case, just like any citizen is," Leach said. "And I don't think any adverse inference should be drawn against him just because he chooses to plead not guilty."

Regardless of media accounts of the accident, Leach said people should refrain from judging Janklow guilty on charges that haven't been proved.

"Sometimes, I feel like we have a presumption of guilt in this society, and I think that's unfortunate," he said.

Janklow held a news conference in Sioux Falls on Monday and offered his first public statements since the accident. He talked about his head injury, continuing headaches, memory loss and occasional confusion, as well as his sorrow over Scott's death.

Janklow also said he expected a complete recovery, physically. But Murphy said the emotional wounds might never heal.

"I don't think you can punish Bill Janklow any more than he's punishing himself," Murphy said. "You can put him in jail and throw away the key, and you can't punish him any worse than he's punishing himself."

Duffy said he was surprised that Janklow took so long to make his first public statements. And even then, he allowed himself to get into tense exchanges with areporter over his past driving record.

All that was a mistake, Duffy said.

"I was surprised at how the press conference got so completely out of control. I was surprised that his lawyer didn't sit right next to him," Duffy said. "It went on too long. His temper grew frayed. He snapped a few times. He was tired. It was not a smart move by the defense."

Contact Kevin Woster at 394-8413 or kevin.woster@rapidcityjournal.com