Dawn Long and Mark Cook's cases may not have had much else in common, but they did begin and end with the same charges.
Both were at one point charged with attempted murder and, like many across the state who faced similar charges, ultimately accepted plea bargains and are now in prison for aggravated assault. That outcome has been the most common among the state's attempted murder cases in recent years.
Between January 2014 and December 2018, 52 people in South Dakota were charged with either first-degree or second-degree attempted murder. Four have been convicted of those charges.
Of the 42 attempted murder cases from that time period that are not still pending and have not been dismissed entirely, 83 percent ended with some sort of plea bargain, including the cases of Long, of Ethan, who was sentenced in April to six years for putting caffeine pills in her then-husband's drink in 2015, and Cook, of Presho, who was sentenced to two years last week for shooting a man in the leg in October 2018.
Twelve of the 17 people who pleaded guilty only to lower-level offenses were convicted of one count of aggravated assault, making that resolution the most common way for attempted murder cases to end.
Davison County State's Attorney Jim Miskimins said one key factor in any case that involves an attempted offense is the state's burden to prove that the person being charged had the intent to commit the crime.
"In some cases, one of two things might be happening," Miskimins said. "Number one, it may be a challenge for the state to establish that criminal intent, and second of all, in order to find that common ground, where the state is satisfied that the potential punishment is appropriate, and the defendant comes to the conclusion that they would like to limit their risk and admit criminal culpability, aggravated assault becomes sort of the sweet part of the racket for both sides to come together and find an agreement."
Miskimins said that despite that burden of proof on the state, plea bargains are not necessarily more likely to be reached in attempted murder cases than in murder or other criminal cases.
Attempted murder is a Class 2 felony in South Dakota, while aggravated assault is a Class 3 felony. The maximum allowable prison time for the two charges differs by 10 years. On average, people who accepted plea deals between 2014 and 2018 received a 10-year sentence, compared to the maximum of 25 for an attempted murder conviction.
David Gienapp, a former presiding judge for South Dakota's Third Circuit, said much of the decision-making in whether to make a plea deal or proceed with a trial comes down to what evidence is available.
"I think the evidence will usually be stronger to support an aggravated assault than attempted murder," Gienapp said.
Davison County Deputy State's Attorney Bob O'Keefe, who prosecuted the Long case, said every case is different, not only in terms of the facts of the case, but in what evidence is available and able to be used - something that could shift throughout the duration of a case.
"You've kind of got to go through an entire case in order to figure out where you're going to come down on a plea bargain. Evidence could be tossed out by a judge, or ruled that it's inadmissible or whatever, which could affect a huge part of your case," O'Keefe said. "... The public only sees, 'Here's the charge, this is what is alleged in the ex parte that the cops fill out.' They don't necessarily see it's just the tip of the iceberg. They don't see everything underneath."
An attorney in Long's case declined to speak to The Daily Republic about attempted murder cases from a defense perspective, and Cook's attorney did not respond to a request for an interview prior to this story's publiciation.
Miskimins said the state tries to work with victims in attempted murder cases to try to find a plea bargain that satisfies the victim, the state and the defense, and that South Dakota has state agencies that work with and provide resources for victims of crimes. Ultimately, the decision of whether to move forward with offering a plea deal is made by the state, not the victim.
"Very likely they cannot be made whole through the criminal court process, through prosecution," Miskimins said. "Maybe they can. From a monetary perspective, they can recoup the actual loss that they've recovered, but there's more to it than just dollars and cents."