Legal legislation has links to MitchellProsecutors could appeal to state high court if they feel judge was wrong.
By: Chris Mueller, The Daily Republic
Legislation that would allow prosecutors to appeal when a circuit judge throws out a jury’s guilty verdict has some roots in a Mitchell case.
The legislation, Senate Bill 35, would allow prosecutors to appeal to the South Dakota Supreme Court when a circuit judge believes a jury has misapplied the law in a criminal case and sets aside a guilty verdict.
The current statute only allows prosecutors to appeal the dismissal of an indictment, a motion for a new trial and a deviation from a mandatory drug sentence.
The bill was proposed by South Dakota Attorney General Marty Jackley. It passed 7-0 in the Senate Judiciary Committee on Jan. 17 and 34-0 in the Senate on Jan. 18. It has since been referred to the House Judiciary Committee.
“It’s just an added protection,” Jackley said in an interview with The Daily Republic. “Our criminal justice system is full of protections.”
Jackley testified Jan. 17 before the Senate Judiciary Committee in support of the bill.
He cited two cases in South Dakota when prosecutors sought such an appeal, but the state’s highest court refused. One of those cases took place in Mitchell last year.
After a two-day trial last April, a Davison County jury found Charlene Stahl, 44, guilty of aiding and abetting possession with the intent to distribute more than 1 ounce but less than one-half pound of marijuana and contributing to the abuse, neglect or delinquency of a child. The jury found Stahl not guilty of possession of more than 2 ounces but less than one-half pound of marijuana.
Stahl was accused of helping her two sons sell marijuana out of their Mitchell home.
Judge Sean O’Brien found there was insufficient evidence to support the conviction and threw out the jury’s guilty verdict on the aiding and abetting charge, a felony.
Prosecutors asked the South Dakota Supreme Court to review the case, but the Supreme Court dismissed the appeal, citing a lack of jurisdiction.
Stahl was still convicted of contributing to the abuse, neglect or delinquency of a child, a misdemeanor, and sentenced to 90 days in jail with 60 days suspended, fined $500 and ordered to pay prosecution costs of $270.94 and court costs of $84.
“That person (Stahl) is still in the community held unaccountable,” Jackley said in an online recording of the committee hearing accessed by The Daily Republic.
The other instance, a 1983 case in Perkins County, involved a man accused of aggravated assault for allegedly trying to run over another man with a pickup truck.
A jury said Billy Olson was guilty of aggravated assault, but the trial judge, Robert L. Tschetter, found the jury improperly discussed a prior assault conviction on Olson’s record during its deliberations. Tschetter acquitted Olson of aggravated assault and found him guilty of simple assault instead.
Prosecutors appealed to the Supreme Court which, according to its decision, found “serious problems with the actions taken by the trial court,” but concluded it did not have jurisdiction to review the case.
“What we’re asking for is the law in 36 other states,” Jackley said in the interview. Jackley, a former U.S. attorney, also pointed out federal law allows for such appeals.
If the legislation is passed, a successful appeal by a prosecutor would result in the jury’s verdict being reinstated, not a new trial, Jackley explained.
Lindsey Riter-Rapp, a Rapid City lawyer, testified before the committee in opposition to the bill for the South Dakota Association of Criminal Defense Attorneys.
On the rare occasion a circuit judge throws out a jury’s verdict, that decision should not be susceptible to an appeal, Riter-Rapp said.
“(Judges) rarely utilize this,” she said. “They use their discretion wisely.”
Riter-Rapp surmised the situation would occur more often if prosecutors were allowed to appeal.
“We think the current state of the law is what works for South Dakota,” she said.
The legislation was first read Tuesday in the House Judiciary Committee, but does not yet appear on the agenda for any upcoming hearings.