Former Tabor man says due process rights were violated
A man who was convicted in 2017 of raping and having sexual contact with a child in Bon Homme County has filed a petition arguing that he did not receive a fair trial.
In January, Paul Brewer, who is from Tabor and is currently incarcerated in the South Dakota State Penitentiary in Sioux Falls, filed a petition for writ of habeas corpus in which he states that an attorney with brain cancer, references to "certain pornographic 'Charlie Brown' cartoon images" during the trial and the trial court's refusal to reschedule after a defense witness suffered a brain hemorrhage are among the reasons his rights were violated and he should be released.
Judge Cheryle Gering filed an order on Jan. 30 that denied appointing an attorney for two of those grounds, but issued a provisional writ and appointed an attorney to determine if Brewer's attorney at trial was legally deficient or if there is any other basis for habeas corpus relief.
Brewer was indicted on June 16, 2016 after a then-12-year-old victim told police that he had been sexually assaulting her for five years. The offenses of which he was accused and convicted took place between Dec. 4, 2015, and May 12, 2016.
Brewer pleaded not guilty to the charges, and a jury trial began at the Bon Homme County Courthouse in Tyndall on March 22, 2017. Two days later, the jury returned guilty verdicts for three counts of first-degree rape and two counts of sexual contact with a child under the age of 16.
Following a psychosexual evaluation, on June 6, 2017, Brewer was sentenced to three concurrent 50-year prison sentences for the three counts of rape and to two concurrent 15-year sentences for the two counts of sexual contact with a child. In total, Brewer was sentenced to spend 65 years in the state penitentiary, with credit for 93 days served in jail.
Brewer's civil case against Darin Young, the state penitentiary's warden, has been filed in Bon Homme County, and a status hearing before Gering is currently set for April 23.
The petition claims three grounds for relief. Brewer wrote in his petition that John Henderson, a psychiatrist who treated the victim at the Human Services Center while she was committed there, was supposed to testify for the defense and "expected to substantiate the testimony given by the petitioner and his spouse regarding the alleged abuse." However, Henderson fell and suffered a brain hemorrhage, leaving him unable to testify.
The defense asked to continue the trial to a later date after Henderson's injury, but the trial court denied the continuance. Brewer argues in his petition that without Henderson's testimony at trial, "the case devolved into a 'he-said, she-said' situation without any meaningful evidence."
Brewer also wrote in his petition that the trial court improperly denied his attempts to get a new trial. Before the trial began, the court had determined that some of the state's evidence, such as pornographic cartoon Charlie Brown images, were to be excluded from the trial. Brewer asserts that those images were mentioned twice during the trial, and that's why the defense motioned for a mistrial, which was denied.
The defense also moved for a new trial after the verdict on the grounds that the trial court's refusal to grant a continuance constituted the court denying Brewer's access to a valid defense. Gering wrote that this and the grounds involving Henderson did not need to be addressed by an attorney because those issues were already discussed in an appeal.
Brewer's final argument is that his attorney, Jerry Pollard, was diagnosed with brain cancer after the trial and showed signs of impairment while he was representing Brewer, violating Brewer's constitutional right to the effective assistance of counsel.
Brewer is requesting on those grounds to have a hearing on his allegations. He's proposed that his sentence be reversed and that he be released from the penitentiary.
Currently, Brewer is scheduled to be released on Aug. 20, 2081, according to the Department of Corrections. He will first be eligible for parole in May 2049, at which time he will be 74 years old.