AG says Janklow ‘misses the point'

| Friday, August 06, 2004

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Reply to former governor's appeal of manslaughter conviction filed with state Supreme Court.

By Denise Ross, Journal Staff Writer

and The Associated Press

PIERRE — Bill Janklow failed to grasp the totality of his driving behavior when, in appealing his felony manslaughter conviction, he argued that he was guilty of merely running a stop sign, according to the state's lawyer.

Assistant attorney general Patricia Archer wrote that Janklow "misses the point" in his appeal arguments that his speed was not greatly over the posted 55 mph limit and that his greatest crime was running a stop sign.

"The sign was not the risk. The risk that (Janklow) disregarded was the potential harm arising out of his speeding through a blind intersection without stopping," Archer wrote. "The tragedy of this case is in the truth: Randy Scott died because (Janklow) chose to recklessly speed down that highway and ignore the stop sign at the precise moment Randy passed through."

Archer argued that Janklow received a fair trial and his convictions should be upheld.

On Dec. 8, jurors convicted then-Congressman Janklow, 64, of second-degree manslaughter, reckless driving, speeding and running a stop sign. He was found guilty of the Aug. 16, 2003, death of Randy Scott of Hardwick, Minn. Scott, 55, died instantly when his motorcycle slammed into the side of a car Janklow drove through a stop sign 10 miles south of Flandreau.

That day, corn more than 7 feet tall blocked the view between the southbound Janklow and the westbound Scott. Janklow had a stop sign; Scott did not.

Archer's 50-page brief, filed with the South Dakota Supreme Court on Wednesday, is in response to Janklow's appeal of his convictions on felony second-degree manslaughter and misdemeanor reckless driving.

None of the issues raised in the appeal, including that the jury heard testimony about Janklow's history of reckless driving, merit a reversal, Archer said. Specifically, Archer argued that it was valid for a woman to testify that Janklow sped through a stop sign and nearly hit her family at the same intersection eight months before Scott died and for a state Highway Patrol trooper to testify that Janklow drove 84 mph in a construction zone, which forced the trooper to pull over. Archer said those incidents showed that Janklow knew that danger existed at that intersection and that he had a history of willfully driving recklessly in dangerous situations. Those incidents showed Janklow's state of mind and rebutted his testimony that he would not have sped through the stop sign if he had been aware of it, she wrote.

Trial evidence proved he was driving recklessly and was aware of the risks when he blew through the intersection, Archer wrote.

"(Janklow's) disregard for the safety of others and his indifference to the consequences of his acts was clearly demonstrated by his egregious conduct of speeding through a stop sign at a blind intersection without bothering to stop and look for oncoming traffic," Archer wrote. "The speed limit at the intersection for southbound traffic was zero."

Also, she argued that numerous other instances from Janklow's driving history were ruled inadmissible by 3rd Circuit Judge Rodney Steele.

Although Janklow claimed he was in a diabetic stupor because he had not eaten for nearly a day, jurors could have reasonably concluded that he knew what he was doing as he approached an intersection he had driven through uncounted times, the assistant attorney general argued.

Two paramedics and the county coroner who aided Janklow at the scene testified he told them he had checked his blood sugar earlier in the day and it was fine, Archer said. Also, jurors heard the videotaped conversation Janklow had with a Highway Patrol trooper. During that conversation, Janklow was alert, oriented, able to calculate Scott's age based on his date of birth and able to give the trooper directions to a hospital and a funeral home, Archer noted.

Also, several officials who responded to the accident testified that Janklow offered and repeated a story about having to "goose it" through the intersection in order to avoid a white car.

And Janklow's passenger testified that Janklow yelled to look out, then locked up the brakes in the seconds before the crash, Archer noted. She called this "a typical reaction for an unimpaired driver."

Janklow's expert medical witnesses testified that a head injury he suffered would have rendered him unable to think clearly after the accident, but Archer argues that those opinions were based on medical tests conducted weeks after the accident, when his brain had swelled. And none of those experts examined the videotape or other evidence of Janklow's behavior at the scene. The state's medical expert did examine evidence from the scene, she argued.

Archer rejected Janklow's argument that the trial judge's refusal to include two proposed jury instructions should lead to a new trial. Both instructions misstated the law and were confusing, she argued.

Janklow spent 100 days in jail and was fined $5,750. He was released on probation and is prohibited from driving for three years. He resigned from Congress shortly after being convicted.

All five state Supreme Court justices have disqualified themselves from the case because Janklow appointed four of them while he was governor and appointed the fifth justice to an earlier circuit judgeship. Five state judges not appointed by Janklow will decide the appeal.

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