Janklow requests acquittal

By Denise Ross, Journal Staff Writer | Saturday, December 20, 2003

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In a move lawyers describe as routine, Congressman Bill Janklow asked a judge to set aside the jury's guilty verdict in his second-degree manslaughter case.

Prosecutors did not present enough evidence to prove the felony charge, Janklow's lawyer, Ed Evans, argued in a motion filed Thursday with the Moody County Clerk of Courts in Flandreau.

Under state law, 3rd Circuit Judge Rodney Steele has 20 days to rule on the motion unless he grants himself an extension.

If Steele decides not to set aside the jury's verdict and acquit Janklow, Evans asked that Janklow be granted a new trial.

Earlier this month, a jury found Janklow guilty of the felony manslaughter charge and three misdemeanor charges in the Aug. 16 traffic death of Randy Scott of Hardwick, Minn. Janklow sped through a rural stop sign, and Scott died instantly when his motorcycle hit the congressman's Cadillac.

In his motion, Evans also complained of "prosecutorial misconduct during closing argument," but he declined to answer questions about the nature of the alleged misconduct.

At trial, after the jury had received the case, Evans asked the judge for a mistrial because he said assistant prosecutor Roger Ellyson had said prosecutors did not learn of Janklow's medical defense, based on his diabetes, until two weeks before the trial. Evans said prosecutors were informed of the defense before that.

In addition, in his motion, Evans said the judge improperly admitted evidence of Janklow's prior acts into trial testimony. The trial took place during the first week of December.

Judge Steele admitted testimony from a woman who said Janklow nearly collided with a vehicle carrying her family after he ran a stop sign at the same intersection where Randy Scott died. And a former Highway Patrol trooper testified that he slowed his cruiser to a near stop when he saw Janklow driving almost out of control in a Rapid City construction zone. The trooper clocked Janklow driving 84 mph in a temporary lane where the speed limit was 40 mph.

Evans also complains that the judge refused to include language proposed by Janklow's lawyers in his instructions to the jury.

Moody County State's Attorney Bill Ellingson said Evans' motion, which state law requires be filed within 10 days of the verdict, is done in almost all felony convictions and preserves the right to appeal the conviction to the state Supreme Court.

"It's quite common, especially in the case of a felony," Ellingson said. "You need to file those motions in order to preserve your right to appeal."

Janklow would have to appeal his conviction within 10 days after Steele sentences him. This week, Steele moved the sentencing back from Tuesday, Jan. 20, to Thursday, Jan. 22. Janklow faces as much as 11 years in prison for his convictions on second-degree manslaughter and reckless driving. Two lesser misdemeanors carry fines.

In this case, an appeal to the state Supreme Court would be tricky.

Janklow, a longtime governor, appointed four of the five justices now sitting on the South Dakota Supreme Court. The fifth justice, John Konenkamp, was appointed a circuit judge by Janklow in 1984 and then appointed to the Supreme Court in 1994 by former Gov. Walter Dale Miller.

South Dakota's canon of judicial ethics require judges to avoid "impropriety and the appearance of impropriety" in all activities but leaves the final decision to recuse oneself in most cases up to the judge himself or herself.

In cases where a judge, a member of the judge's family or a judge's former law partner are directly involved or stand to benefit financially, the rules are clear that a judge must not preside over the case.

In other cases, the rule is to promote trust in the court system.

"A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," the canon says.

When the Supreme Court this week suspended Janklow's law license and referred his case to the state's disciplinary board — something done when a lawyer is convicted of a felony, three justices recused themselves and were replaced by circuit judges.

Justices Judith Meierhenry, Steve Zinter and Richard Sabers recused themselves, but Konenkamp and Chief Justice David Gilbertson did not.

Janklow appointed Gilbertson to the Supreme Court in 1995, and he was elected chief justice by the other justices in 2001.

Legal observers say it's a safe bet that the three justices who stepped aside in the suspension of Janklow's law license would do so again in the case of an appeal.

Whether the other two also would recuse themselves in a case of greater magnitude than the suspension of a law license would be up to the justices themselves.

Should members of the public disagree with a justice's choice in such a case, they could vote against a given justice in 2006. That year, each of them is on the ballot for retention of their seats on the court.

Contact Denise Ross at 394-8438 or denise.ross@rapidcityjournal.com