Final papers filed in Janklow appeal

By Joe Kafka, Associated Press Writer | Wednesday, August 11, 2004

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PIERRE — Lawyers for Bill Janklow filed the final paperwork Tuesday with the state Supreme Court in a quest for reversal of his second-degree manslaughter conviction or a new trial.

Five circuit judges appointed by the high court will now consider the written arguments of defense attorneys and the state. The judges also may review hundreds of pages of trial testimony before reaching their decision, which could come within a few weeks or take several months. All five Supreme Court justices have disqualified themselves from the case because Janklow appointed four of them while governor and appointed the fifth to an earlier circuit judgeship.

Janklow was found guilty on Dec. 8 for last summer's 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.

Jurors convicted Janklow, 64, of second-degree manslaughter, reckless driving, speeding and failing to stop.

Edwin Evans and Melissa Hinton, Janklow's defense attorneys, argue in their final legal brief that the former attorney general, governor and congressman did not get a fair trial.

The prosecution was erroneously allowed to argue that the fallen politician routinely drove fast and ignored other rules of the road, the defense attorneys said.

Jurors may have been led to believe Janklow should be convicted because he had often broken traffic laws and consciously did so on the date of the fatal crash, his lawyers argued.

Testimony should not have been allowed from a woman who said Janklow barely missed her family after running a stop sign at the same intersection several months earlier and a former state trooper who said he had stopped Janklow for going 84 mph in a 40-mph construction zone, Evans and Hinton argued.

"The state used the evidence during the trial for an improper purpose and urged the jury to convict Janklow on the basis of his driving history," they said.

It also was improper for the prosecution to ask Janklow about his past driving habits, the defense attorneys argued. They said Janklow, who agreed to testify at his trial, did not open himself to such a line of questioning when he denied previously running stop signs and exceeding speed limits.

There was no basis to impeach his statements because he testified that he always obeyed stop signs unless he was responding to emergencies or running late for official appointments, the defense lawyers said.

Circuit Judge Rodney Steele should have acquitted Janklow because the evidence did not prove that he was aware of the risk when he drove at 64 mph through the stop sign, Hinton and Evans said. They said Janklow was in a diabetic fog at the time of the crash. Although physically capable of driving, he was not aware of the danger at the intersection of two rural highways, they said.

"The accident occurred because Janklow did not see and therefore did not stop at the stop sign," they wrote.

A conviction for second-degree manslaughter cannot be sustained unless a person knowingly disregards a substantial risk, the defense attorneys said. Considerable evidence was introduced at the trial to show that Janklow had not eaten for 18 hours before the crash and that low blood sugar could have caused a severe diabetic episode, they said.

The state filed earlier arguments that said Janklow got a fair trial. The evidence proved he was driving recklessly and knew the risks when he sped through the intersection, the state said. Janklow spent 100 days in jail this spring and was fined $5,750. He was released on probation and cannot drive for three years. He resigned from Congress shortly after being convicted.