PIERRE, S.D. — The chief federal judge in South Dakota says an appellate court — not any in-state judge — will oversee any criminal prosecution of three U.S. Marshals for aiding a deputy to abscond with prisoners from an Aberdeen courthouse earlier this year after a judge asked her to leave for not responding to his questions on her vaccination status.
Judge Roberto Lange, chief of the U.S. District Court of South Dakota, issued an order on Thursday, July 1 recusing any federal judges in the state from criminal prosecution of John Kilgallon, the chief of staff for the U.S. Marshals Service, as well as Daniel Mosteller, and Stephen Houghtaling, the top two-ranked marshals in the state.
"At a recent meeting of all district and magistrate judges of the District of South Dakota, the undersigned judge explained that he felt the need to recuse himself, and all district and magistrate judges of the District of South Dakota advised that they as well would recuse themselves," wrote Lange.
Instead, said Lange, the Eighth Circuit Court of Appeals should assign an "out-of-state" judge to the matter.
Two days earlier, Judge Charles Kornmann, the judge at the center of the vaccination dispute and who presides upon the federal bench at the Aberdeen federal building, issued an order recusing himself from the trial of obstruction of justice charges, currently scheduled for September 13.
Kornmann also, last week, appointed a special prosecutor from Rapid City — attorney Thomas Fritz —to lead the case against the USMS officials, who are charged with allowing and even endorsing a deputy marshal's decision to depart from the federal building on May 10 with three criminal defendants in tow, in effect delaying their hearings.
Fritz, who will be paid $300 an hour, will replace James McMahon, who Kornmann initially appointed, but who has since stepped aside from the role.
"Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated," wrote Kornmann, a President Bill Clinton appointee, in his July 1 order.
Instead, continued the judge, the prosecution stems from criminal action taken when three defendants were removed from court on May 10 without their permission and three others also saw their face-to-face hearing delayed.
Kornmann says since the Department of Justice — who declined to prosecute the marshals last month — never did "anything of substance" following the actions, he believes "the contempt continues."
Last month, former South Dakota Attorney General Marty Jackley, and ex-U.S. Attorneys Scott Abdallah and Ron Parsons signed on to defend the USMS officials — signaling legal firepower in the unorthodox case, which spawned from the judge's enforcement of elevated protocols in the Aberdeen facility for unvaccinated individuals and has morphed into allegations the marshals "kidnapped" prisoners.
In his order, Kornmann referred to Jackley, Abdallah, and Parsons as "very competent and talented criminal defense attorneys."