Amicus lector

Here’s a thing you shouldn’t do

Wed, 22 May 2013 17:58:00 -0400

Apparently a woman in Norwich, England got herself in trouble when she bragged on twitter about tagging a cyclist with her car. Not surprisingly, the police had a few questions for her. Genius at work, yes?

Well, I saw the link today and felt compelled to share the story here, specifically because of comments like this one, which appeared on this story in the Argus Leader:

Plenty of drivers hold some degree of resentment toward cyclists, or at least some cyclists. My suspicion is that the drivers who rant the most about bikes also rant the most about other drivers, but who knows for sure …

Anyway, the guy from the screengrab up there, whose named I have scrubbed not to protect his identity exactly but because I’m singling him out without warning (feel free to click on the comments if you care), made a relatively tame comment.

Some Argus commenters have gone next-level with their annoyance at pedal-pushing travelers, relaying sentiments along the lines of “get on the sidewalk where you belong or get ready to be run over.”

Consider our English friend’s experience as a reminder that the police tend to react rather strongly when bad attitudes move from joking to actual callousness.

Traffic fatalities in SD, sorted by blood alcohol content

Fri, 17 May 2013 18:55:15 -0400

So yesterday on 100 Eyes, the fast and furious Patrick Lalley and I talked about the National Transportation Safety Board’s recommendation that states drop their legal limit for alcohol in the blood from .08 to .05.

I promised on the show to post some numbers from the state concerning the blood-alcohol level of drivers involved in fatal alcohol-related crashes. Part of the debate on .05, of course, will be how much public safety good can we do, how many lives can be saved, if we make the switch?

As you’ll see from this spreadsheet, there are a handful of crashes that involve drivers with a BAC between .01 and .05. Most of the crashes involve people with a higher BAC than that, but it is an interesting chart.

Fatalaties By blood alcohol content

Is a .05 blood alcohol limit a possibility in South Dakota?

Thu, 16 May 2013 13:26:00 -0400

Most people assume driving under the influence means driving while impaired.

That’s more or less true. But it’s also true that some people who drink a six-pack end up further “under the influence” than others might.

This is thorny territory, I know, and I’m not trying to making light of the issue. We all know that drinking and driving is deadly and depressingly common. Nearly everyone has been touched by the issue.

But different people do have different levels of tolerance to alcohol, for a lot of different reasons. People do have different interpretations of what impairment means, even if those opinions are usually based on instinct and not science.

Those two truths - that people react differently to alcohol and people don’t always agree about what it means to be too drunk to drive - underpin the debate about where we set the presumptive level of intoxication for DUIs.

That debate is set to heat up again. The National Transportation Safety Board recommended this week that states drop the legal limit of alcohol in the blood to .05 percent from the current standard of .08.

NTSB Chair Deborah Hersman said during a Tuesday press conference that there were 1,000 alcohol-related fatalities in 2011 where the driver had a BAC of .05-.07.

She also said that Australia and several countries in Europe saw the number of drunk driving fatalities drop by five to 15 percent after switching from .08 to a .05.

“On this issue, we are woefully behind our international counterparts,” Hersman said.

She also said this:

“We know that drivers are significantly impaired at .05,” Hersman said. “There is no debate about that.”

Here’s one more:

“Impairment begins with that first drink,” she said, although she did say “most people” can have a glass of wine with dinner and still be okay to drive.

Where we decide to put the BAC limit matters a lot in terms of how the justice system handles DUIs, and not only because drunken driving is so prevalent.

In South Dakota, for example, there are two basic ways for prosecutors to prove someone guilty of the crime of DUI:

1. They can prove that a driver was under the influence by presenting evidence that the driver, at the time of the arrest, was impaired. That could include field sobriety test results that show the person couldn’t perform basic tasks like walking a straight line, tracking a pen with their eyes, holding their arms out and touching their nose with one hand, etc. The cruddy driving that got the person pulled over in the first place also fits here (if cruddy driving was the reason for the stop, of course). For this one, it doesn’t matter what your BAC is.

2. They can prove that the driver had .08 or more of alcohol in their blood at the time of the arrest. If they can do that, they theoretically don’t need to prove anything else.

At this point, I haven’t heard any prominent South Dakota official jump at the chance to support the .05 idea. A few have said it’s too early to say, but that they might be open to the idea if it were shown to improve public safety, but I haven’t heard any ringing endorsements.

Rep. Bernie Hunhoff, D-Yankton, Sen. Jason Frerichs, D-Wilmot and House Transportation Chair Mike Verchio, R-Hill City all said they don’t see such a change as a real possibility in South Dakota in the near future. They each mentioned, separately, that a .05 limit is a little too close to criminalizing the act of driving after drinking a beer or two. Terry Woster, spokesman for the Highway Patrol, said it wouldn’t be appropriate to comment on the policy proposals.

Minnehaha County State’s Attorney Aaron McGowan offered this:

“My primary responsibility is public safety and I will always support safer highways. However, any changes must be evidence-based and I’m not willing to place additional restrictions on our citizens without compelling proof.”

Here’s Attorney General Marty Jackley’s response:

“The issue of legal alcohol limits is ultimately for our legislature to decide. As Attorney General, I always make myself available to the Legislature to provide input and advice, and in anticipation of the legislative discussion I have begun and will continue discussing the NTSB’s recommendation with Sheriffs, Chiefs, State’s Attorneys and victim groups. As a consideration and consistent with NTSB’s recommendation, South Dakota law does already protect the public by holding an impaired driver below .08 accountable for DUI. See SDCL 32-23-1(2) which provides: ’No person may drive or be in actual physical control of any vehicle while (2) Under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription, or any combination of an alcoholic beverage, marijuana, or such controlled drug or substance.’”

My guess is this discussion will evolve. The .05 question, after all, is a continuation of a debate we’ve been having in this country for 40-odd years: Where do we set the bar for alcohol in the blood? How much alcohol can a person drink before we say “you no longer get to decide that you’re okay to drive.”

The limit was .15 in the 1970s, and Judge Larry Long told me once that he sometimes struggled as a prosecutor to get jury convictions for .15 back then.

Now, a .17 BAC is considered high enough for judges to require the 24/7 sobriety program as a bond condition, even on a first offense.

We all know people who think they’re okay after a few drinks. We all know people who have a higher tolerance and seem unaffected after drinking enough to lay another person out. Some of us have heard stories about Uncle Joe So-And-So who drank 12 beers a night at Yakadee Smack’s Downtown Pub for 20 years and drove home all the time but never hurt anyone.

Setting the bar at a certain level is society’s way of saying it doesn’t matter how lucky Mr. So-And-So has been. Once a person gets X amount of alcohol in their system, the science says it’s too risky for that person to get behind the wheel.

Let’s put it this way: It’s conceivable that there are people out there who, under the right circumstances, could drive away from a place at midnight with no headlights on and still make it home without a wreck. That doesn’t mean the person gets a pass on a law that says you need to drive with your headlights on after hours.

So that’s what the debate is about on a broader level, but changes to the legal limit have serious, real-world consequences in court.

Here’s one reason why: It takes a while for alcohol to be absorbed into the blood stream. That means if a person slams a beer on their way out of the bar then gets pulled over a block away, their BAC will have increased slightly by the time jailers take a blood draw at 9 or 9:30 p.m.

If there isn’t a lot of concrete proof the person is impaired (they refuse to do or somehow pass the field sobriety tests), a defense lawyer can use the blood test results to argue that their client wasn’t at the legal limit when they were in actual physical control of their vehicle. Juries might go for that argument, and prosecutors would generally rather have a conviction than a loss at trial.

In Minnehaha County, people who test at .08 or lower regularly have their charges reduced to reckless or careless driving for that reason. If you test at a .10 – which was the legal limit in the state until 2002 – you’ll probably still get the DUI charge.

In 2012, according to the State’s Attorney’s Office, 135 of the 1,978 DUI cases filed resulted in a reduction to a solely due to a low blood test. Of those, 130 involved drivers who tested between .05 and .09.

Does that mean those drivers would have gotten a DUI if the limit was .05? It’s impossible to speculate. No one knows how a South Dakota jury would react to a .05 presumptive level, and the way juries react has a lot to do with the kind of plea deal is offered in one county or the next.

So where do we go from here? Who knows. It’s certainly possible that there won’t be serious discussion about a change unless federal highway funding is tied to it, and there’s historical precedent for that. South Dakota didn’t change the law to .08 until 2002, though a bill was offered nearly a dozen times before that. The state was set to lose funding the following year.

Don't shoot people with BB guns, kids. Unless you want to be locked up.

Tue, 14 May 2013 09:16:00 -0400

So a 13-year-old boy spent the weekend at the Juvenile Detention Center for allegedly shooting two younger boys with a BB gun.

I don’t know this because I was somehow able to listen in to a closed juvenile hearing or because someone involved in the crime told me details that aren’t public.I know this because the boy was charged with aggravated assault involving a firearm.

Under the juvenile detention scheme in Minnehaha County, assault with a firearm nearly always results in a stay at the JDC that only ends when a judge decides to release the kid pending adjudication (which is juvenile court-speak for “trial”).

It doesn’t matter what the circumstances are. If you use a firearm in a crime, even a BB gun, you generally have to see a judge.

You might recall that South Dakota is in the process of reworking its juvenile justice system, with Minnehaha and Pennington counties in the lead. Three years ago, those two counties took grant money from the Annie E. Casey Foundation to study the Juvenile Detention Alternatives Initiative, which operates on the understanding that kids who are locked up are more likely to commit more crimes in the future.

Whenever possible, the JDAI studies show, using an alternative to detention is better for the child, cheaper and better for public safety. Those concepts required a huge shift in thinking in South Dakota, which the Casey Foundation once ranked as the state most likely to lock up kids.

Both counties ultimately decided to follow through and become JDAI partners.

To do that, the JDAI committee had to hammer out what’s called a “Risk Assessment Instrument” to help JDC employees decide who should and who shouldn’t be locked up following a new arrest. The work on the RAI started shortly after an internal study showed that a majority of the kids at the Minnehaha County JDC had been held for probation violations and minor offenses.

Basically, the RAI is a worksheet that scores a kid who gets busted with a point system. Let’s imagine a kid sucker-punches a classmate at the mall and someone calls the cops. The cop who shows up would call the JDC and tell them the kid has been charged with simple assault. The JDC employee would give the kid a score of six for the assault.

Let’s say the kid got in trouble six months before that for smoking pot and hitting another kid. Those two misdemeanors get him three more points. He also got busted for skipping school two months ago. There’s another point.

That’s 10 points. His loses two points because his parents are willing to take him in and because he hasn’t failed to appear for court over the past two years.

That puts him at an 8. That’s too high to let him go home by himself while his case is pending (6 or below), but it’s not high enough to be detained (12 or above). If a parent or guardian is immediately available, the kid can go home with them. If not, the JDC person will tell the cop to take the kid to the county’s reception center - which operates 24/7, 365 days a year - and the kid will stay there until a parent can come get him.

Clear as mud? Okay, let’s get back to our friend the 13-year-old.

His offense – assault with a firearm – gets him 15 points right up front. Even if he gets all three mitigation points, he’s still at 12.

The truth is that the rest of the details don’t matter. It doesn’t matter if it was a BB gun or an actual handgun. It doesn’t matter if the kid shot the weapon or just threatened someone with it. It doesn’t matter if you’ve never been busted before and that you swear, swear, swear you were only fooling around, and it doesn’t matter that your parents are ready to bring you home and ground you until you graduate.

Aggravated assault with a firearm means you go to JDC and stay there until you see a judge, and that’s that. There is an override on the sheet, but it normally wouldn’t apply to crimes involving firearms.

And in case you were wondering: The JDC is not any fun. Some defense lawyers will say the JDC in Sioux Falls is, in some ways, a scarier place than the Minnehaha County Jail. It’s not a new, modern place with new, modern amenities. It looks like and feels like a jail in a way the Pennington County JDC – or any relatively new JDC – does not.

Minnehaha County has come a long way in terms of distinguishing which kids belong in detention and which don’t. The JDAI’s work has dramatically trimmed the number of kids at the JDC, and juvenile crime hasn’t gone through the roof as a result. The Annie E. Casey folks regularly point to South Dakota as a success story these days.

But Minnehaha County still isn’t a place where you can fire a BB gun at a neighbor, get a ticket and go home. It probably never will be.

Don’t say you haven’t been warned, kids.

In case you’re curious, here’s the Risk Assessment Instrument.

Minnehaha RAI Updated

Bike commuters vs. people on bikes

Mon, 13 May 2013 11:12:00 -0400

My colleague Beth Wischmeyer has this story today on bikes and bike safety in Sioux Falls.

It’s one of a series of bike-related stories we plan to report in the run-up to the first Tour Sioux Falls this summer.

She focuses on bike commuters and safe options for riding to work, which was one piece of a story I wrote a few weeks back.

One of Beth’s commuters is quoted saying he wouldn’t dare ride on Sioux Falls’ busiest streets at 7:30 a.m.

That’s not an uncommon thing to hear from bike commuters. They say drivers don’t like to share the road, that drivers don’t look for bikes, and that there are some roads where the fight with combustion engines isn’t worth the risk.

All of that is basically true.

Even so, there’s a sharp divide between the types of cyclists quoted in Beth’s story and the majority of bipeds on bicycles in Sioux Falls.

Relatively few cyclists do everything right. “Responsible” bike commuters ride in the road and behave like vehicles, wear helmets, use lights at night and assert their right to take the lane if necessary.

But most cyclists aren’t responsible bike commuters. They’re just people on bikes.

The crash data I used for my story supports that assertion. It showed that cyclists were held responsible for more than 60 percent of the bike vs. vehicle wrecks in Sioux Falls since 2007.

Often, those crashes involved a cyclist riding out across an intersection without stopping. Drivers who hit those cyclists aren’t usually held responsible, as the law says cyclists on sidewalks are supposed to stop before crossing the street. Other collisions involved cyclists who wove in and out of traffic instead of stopping like the vehicles around them.

When the driver was deemed responsible, it was most often because they weren’t paying enough attention.

This is what it means when people say things like “we need more education on both sides.”

The people who say that are correct.

I thought about this last night. I was driving west on East 10th Street near the school for the deaf and preparing to make a left turn. I had a green light, but I looked to my right and saw two young cyclists without helmets riding against traffic on the sidewalk (bike safety instructor Mike Christensen calls this the most dangerous way to ride).

One of them slowed down to wait for the other, almost as though he’d planned to stop her and cede the right-of-way. When she caught up, both of them proceeded to cross the street. The second cyclist took her sweet time, with my light turning yellow as I waited for her to cross.

Afterward, I realized that if I had I turned early and hit either of them, I might have been cleared of responsibility by the SFPD.

It’s a sobering thought. My car would have been fine. I’d have been fine. The cyclists, on the other hand, could have been seriously hurt.

Cyclist James McInnis III was killed in 2011 in a similar situation. The driver in that case, David Kinner, was ultimately deemed responsible because he was under the influence of prescription medication and because he’d “jumped the green” and turned in front of oncoming traffic.

Had he been sober, had he turned legally, Kinner might not have been charged at all. The cop who investigated the case told me as much.

It’s notable that Mr. McInnis wasn’t wearing a helmet at the time of the collision.

It’s amazing how much danger there is out there for cyclists once one begins paying attention to the bikes and where they are. Here’s an idea: Let’s all do more of that. There’s no reason we can’t share the road, and no driver honestly wants to see a cyclist hurt.

Be safe, folks.

Decoding Jerry Adrian’s ‘state sovereign mumbo jumbo’

Fri, 10 May 2013 11:17:00 -0400

Sod dealer Jerry Adrian almost got himself tossed in jail for failing to abide by his bond conditions yesterday.

The conditions include no contact with a fellow “sovereign citizen” devotee named Don Anderson, who tried to file a lawsuit in Roberts County (with the Register of Deeds, for some reason) against Judge John Simko.

Simko was not amused, calling the lawsuit “state sovereign mumbo jumbo of no effect whatsoever.”

So what is a sovereign citizen? Essentially, it’s a person who feels as though no one who works for the U.S. government has legitimate authority over sovereign citizens. They believe the government, as it stands in the modern U.S., is a sham.

The reasons for that are complex and outlandish. There are several places you could look for an deeper explanation. The FBI says the most extreme sovereign citizens are threats for terrorism. The Southern Poverty Law Center has a rundown of the group here.

Perhaps the best way to get an understanding of what the “mumbo jumbo” looks like is to read it yourself.

Here’s a letter submitted to the U.S. District Court of South Dakota by Mr. Anderson on Adrian’s behalf. It was filed on July 30, 2012, which was shortly after Adrian and his son were indicted for tax evasion.

Don Anderson Aff

Here’s a filing from Adrian claiming the court has no authority.

No authority

Here’s one of the many “affidavits” filed along with the above motion. This one says Mike Milstead has no authority.

Milstead no authority

We could do this all day. The court file is full of this stuff. Here’s one more, a letter to U.S. Attorney Brendan Johnson regarding the search warrant served on Adrian’s property.

Johnson Letter

How the cops will get your blood (now)

Tue, 07 May 2013 13:53:00 -0400

Last week, I sent survey-style emails to a half a dozen police chiefs.

I wanted to know what they were doing differently in light of the Supreme Court’s recent ruling in Missouri vs. McNeely that says blood cannot be drawn without a warrant simply because alcohol dissipates in the blood over time.

This was a particularly bitter pill for South Dakota, where our implied consent statute doesn’t even give arrested drivers the option of saying no to a blood draw.

Attorney General Marty Jackley advised police that McNeely didn’t overturn South Dakota law. Even so, Jackley’s advisement explained, police that opt to alter their DUI procedures ought to first seek consent for a blood draw, then attempt to get a search warrant telephonically, then consider several factors before going ahead without one.

The chiefs had a built-in opportunity to talk about McNeely, which unfortunately kept some of them from getting back to me by my deadline. The decision came one week before last week’s police and sheriffs conventions in Deadwood.

I was able to connect with someone in Sioux Falls, Rapid City and Mitchell by my deadline but that was it.

Starting Friday, after the conventions, more answers began to trickle in.

Brookings Police Chief Jeff Miller punted.

“Right now we are referring all inquiries to the AG’s office,” Miller wrote Friday evening.

Yankton Police Chief Brian Paulsen sent an email apologizing for not responding right away, but he didn’t answer the questions.

The answers from the rest of the chiefs show two trends: Most police in South Dakota are going to ask for your consent before drawing your blood at a DUI stop, but they’re going to do everything in their power to get your blood anyway if you say no.

Huron Police Chief Gary Will says his officers will ask for consent, tell the person they could lose their license for a year if they say no, and then call for a warrant.

If no judge answers the phone, Will says, “that’s an exigency right there,” meaning the lack of a judge counts as one reason to excuse a warrantless blood draw. Taken with other factors, the absence of an available judge might be enough to make the BAC evidence from admissible in court.

The no-judge scenario is a real possibility, Will says, because officers in Huron can only call judges who work in the Third Judicial Circuit. A Huron officer can’t call a Sioux Falls judge for a warrant.

Pierre Police Chief Bob Grandpre said Monday his officers haven’t changed just yet, but that they probably will.

Highway Patrol Superintendent Craig Price, who emailed a statement but declined to answer follow-up questions, said troopers will attempt to get a warrant in certain situations but doesn’t intend to alter its procedure drastically.

So officers in Sioux Falls, Rapid City Huron and Mitchell are definitely going to ask for consent, those in Pierre soon will do the same, but troopers in the Highway Patrol might not.

If you plan to sue someone, make sure they're alive

Wed, 01 May 2013 17:39:31 -0400

Some readers went right after this story about a former Ms. Wheelchair South Dakota suing eight local businesses over ADA access.
Some of the comments on the Argus Leader’s Facebook page and on two online versions of the story came from people who’d experienced their own difficulties with wheelchair accessibility in Sioux Falls.
Kristina Allen, the plaintiff in the lawsuits, claims to be speaking for them. She isn’t asking for money (aside from attorney fees). She’s asking each of the businesses to remedy the issues she says make it difficult for her and anyone else in a wheelchair to patronize the establishments.
The alleged issues are similar from business to business. The lawsuits have similar language, too.
This bit appears in all eight of them:
“Plaintiff is deterred from, and is denied the opportunity to participate and benefit from the goods, services, privileges, advantages, facilities and accommodations at Defendant’s property equal to that afforded to other individuals. Plaintiff is aware that it would be a futile gesture to attempt to visit Defendant’s property if she wishes to do so free of discrimination.”

The similarities aren’t surprising. These appear to be form lawsuits, filed with the assistance of an out-of-state lawyer who specializes in ADA lawsuits. For further proof, take a look at this rather perplexing sentence in the suit against Boonies:

“The Plaintiff has encountered architectural barriers at the subject property which discriminate against her on the basis of his disability and have endangered his safety.”

Notice the “his” pronoun in there? Someone probably went through each of the documents before filing them and plugged in the necessary changes: “His” to “hers,” “him” to “her,” “he” to “she,” etc.

Not a huge typo, really, given the sheer number of pronouns spread throughout the filings. If it happened in every paragraph, one might be justified in getting judgy about the grammar.

There’s something larger, though: Half the lawsuits list defendants who don’t own the targeted businesses any longer.

When calling around yesterday to ask for comment, I had a lady tell me it had been “at least three years” since she and her husband owned The Mint casino. She was served with the lawsuit, anyway. An employee at Nutty’s Pub and Grill told me the woman I was looking for hadn’t owned the place for a year.

The man who now owns Boonies Bar and Barbeque said he couldn’t comment officially on the lawsuit because he hadn’t seen it. Of course he hadn’t. He isn’t named in it.

This carried on into Wednesday. Someone sent a message to the Argus Leader’s Facebook account pointing out that Nutty’s is no longer owned by the named defendant (which is odd, considering we didn’t name her). The message also said the bar had been renovated in the past year.

Another defendant is dead and has been since 2010. Honestly.

The named defendant was once the owner of Black Sheep Coffee, but he died in 2010. A Black Sheep employee told me Tuesday that someone showed up recently to serve papers on him. He was predictably unavailable.

All of this raises plenty of questions about the veracity of Allen’s specific claims. Exactly when did she visit these places and have these troubles? How many of the problems described in the lawsuits still exist?

These lawsuits will probably need to be amended at the very least, possibly re-filed. The lawsuits that don’t name a specific owner – those targeting Crown Casino, Golden Bowl Chinese Restaurant, Jacky’s Restaurant and Bakery – might be in better shape.

Those are issues for the court to decide. The actual truth of a case is always up to court.

The story was and remains newsworthy for two reasons - One, an advocate for the disabled filed lawsuits against local businesses detailing a series of very real problems faced by people in wheelchairs, and two, the flurry of lawsuits is an example of how private individuals are sometimes expected to seek their own relief when they believe they’ve been discriminated against because of a disability.

In other words, the disabled feel they have to enforce the ADA laws themselves. That much is true, regardless of what happens with Allen’s cases, and is worth writing about.

Whether she is telling the exact truth about one business or the next is a separate question – again, one for the courts.

That said: if you intend to sue someone, it behooves you to make certain that the person is still alive.

What we don't know about this weekend's prison assault

Tue, 23 Apr 2013 12:33:05 -0400

At this point, there are still more unanswered than answered questions about the assault on Cpl. Zane Mathis in the state prison over the weekend.

Mathis was attacked in the Jameson Annex on Saturday evening, allegedly, by a maximum-security inmate named Carlos Green. Mathis was still hospitalized Monday, having suffered a broken jaw and several cuts to the head from being punched by Mr. Green.

The DOC and DCI have been mum on details beyond that, saying the case is an open investigation. Green hasn’t been charged yet.

Among the things we don’t know:

- Where did the assault take place? It was in Jameson Annex, but did the attack take place in or outside Green’s cell? Was he being taken from one place to the other? Does he share a cell with someone else?

- What lead up to the attack? DOC spokesperson Michael Winder said Monday that the last two inmate-on-staff attacks designated as “serious” involved inmates who didn’t want to be handcuffed. Was that Green’s issue? Was he arguing with Cpl. Mathis about something?

-Did Mathis use his body alarm or radio to alert his coworkers? Since the murder of Senior Corrections Officer Ron “R.J.” Johnson in 2011, all staffers have been required to wear body alarms. IN the event of an attack, the idea is that the staffer can hit the alarm and anyone anywhere nearby would hear it and respond.

- Was the assault captured on camera? More than 100 additional cameras were placed throughout the prison grounds after Johnson murder. You might recall that the murder itself took place in the Pheasantland Industries building outside the eye of the security cameras. The only video from the attack showed one of the perpetrators, Eric Robert, pushing a box on a wheeled cart through a hallway. That box, we later learned, had Rodney Berget in it. The two attacked Officer Matt Freeburg when he caught them trying to escape at the prison’s west gate.

-Was Mathis alone at the time of the attack? Was he performing a routine duty?

- What, if anything, will the DOC do in response to this incident? After the Johnson incident, there were formal and informal security reviews. When inmate James McVay walked away from the Community Transition Program and killed Maybelle Schein, just months after the Johnson murder, another review of procedures took place. Does the Mathis incident deserve such a treatment?

-Why hasn’t Green been charged yet?

I’ll be looking for those answers over the coming days. As soon as I know, you’ll know.

Try, try and try again

Mon, 08 Apr 2013 21:01:42 -0400

When I wrote about e-cigarettes, I had a feeling someone would call out the column for endorsing the devices as being a “safe” alternative to cigarettes (which I didn’t).

I expected that a few people would tell me to keep trying to quit in the comments section (Thanks, Rob!).

I learned something I didn’t expect to, though: Apparently, the friend who initially offered me an e-cig then returned to cigarettes is back on the vapor again.

I posted the story to his Facebook wall, you see (I try to fill my friends in when I write about them). He politely informed me that his scrappy, smoke-hating girlfriend had um, *kindly* nudged him back into vaping by buying him a kit from this site.

The point I made - that he was vaping and returned to cigarettes – is still valid. That did happen. It happens to a lot of people. It might happen to me, too.

That he returned is no small matter, though.

When I first thought about switching to e-cigs, I asked my Facebook friends if they knew of anyone who’d tried e-cigs and actually gotten off regular cigarettes altogether as a result.

My longest friend was among the scores of people who’d told me about trying to switch, only to end up disappointed and unsatisfied. Today, one of the people who read the story wished me luck, saying he hopes I have more of it than he did.

My friend’s story of a second attempt was a reminder that people do switch. There’s a forum site full of them right here.

The forum is where I discovered that the first e-cig kit I bought is widely viewed as an unreliable, overpriced choice. This is one I settled on after perusing their site for a week or two.

A lot of the posters on the e-cigarette forum are rabid fans of the practice. The online community in general is fairly rabid, I find. Google “e-cig reviews” and click the videos tab. Everyone’s got an opinion, as they say.

A lot of forum folk are of the opinion that vaping is, unquestionably, a safe alternative to cigarettes. If you read my column, you know that I’m not entirely convinced of that. It seems unlikely they’re anywhere near as bad as a cigarette, but the technology is too young to be certain of their long-term health effects.

Smoke-Free South Dakota certainly doesn’t see e-cigs as a safe alternative. The group posted my column on their Facebook page and said as much. They used the column as an opportunity to endorse the QuitLine.

I mentioned QuitLine in my column. I said I tried QuitLine and it didn’t work. Allow me to be explicit about something: The QuitLine is a phenomenal resource. If you’re even remotely interested in quitting, you ought to call them.

I get that all the phone counseling, quizzing, following up and whatnot can be annoying. I know exactly how much of a bummer it is when they call you back and you have to admit that you’re still smoking (or lie about it). But the fact is that they’ll get you practical stuff to help you quit: Patches, Chantix, etc.

So try the QuitLine. 1-800-SDQUITS. Try cold turkey. Try the gum. Try whatever. I stand by the point I was trying to make, though: If that stuff doesn’t work, you owe it to yourself to try e-cigarettes, too.

The other point? Don’t start in the first place. It’s not cool, it’s not fun and you’ll regret starting. Everyone regrets starting. Just don’t.

Not District Dialogue: Doug Morrison reminds you to read the story, not just the headline

Mon, 08 Apr 2013 20:55:21 -0400

Not District Dialogue: Doug Morrison reminds you to read the story, not just the headline:

notdistrictdialogue:

If you’ve made it this far, I salute you.

You went beyond the headline to read the actual content of this blog entry. You are no doubt well prepared for the 21st century work force.

Because the thing about headlines is that in the space of, say, six words, you rarely get the full story, which is…

Colorado looks to define "too high to drive"

Thu, 04 Apr 2013 13:14:00 -0400

It seems as though I’ve written about pot quite a bit lately, but I ran across something today that brought me back to the subject.

So if you’re bored with weed, go ahead and move along. If you’re not, by all means proceed.

The state of Colorado, whose voters legalized pot for recreational purposes last year, is once again talking about defining drugged driving as it relates to marijuana.

The bill would make it a crime to drive with 5 nanograms of THC – the chemical that causes the marijuana high - in your blood.

The House gave the go-ahead for the bill, which Gov. John Hickenlooper thinks is a good idea, on Tuesday.

Washington state codified the 5-nanogram standard at the same time its voters approved recreational marijuana.

There are concerns by some marijuana activists that the 5-nanogram threshold is not an accurate standard for impairment. THC is stored in fat cells and sticks around in your system for several weeks. A guy with the Denver alt-weekly Westword wrote a column here about having more than 5 nanograms in his blood after not smoking marijuana for 15 hours.

The question is what constitutes impairment. Can a blood test for a chemical that sticks around in the body for weeks after its effects wear off be a fair measure under the law?

In South Dakota, a person can be charged with DUI for driving under the influence of any substance, including marijuana. The measure of impairment, at least in Sioux Falls, is a specialized field sobriety test conducted by one of a half dozen “drug recognition experts,” according to SFPD spokesman Sam Clemens.

If an officer smells marijuana during a traffic stop and the driver appears to be impaired, he said, a DRE officer can do a set of tests to determine if the person actually is impaired. The tests are recorded, Clemens said, and the DRE officer can testify in court, if necessary.

There is no specific amount of THC in a person’s blood that would automatically translate to a DUI charge in South Dakota. That’s different from the law as it relates to alcohol, where the legal limit is .08.

The DUI laws are written in a way that gives prosecutors two options for obtaining a conviction: Either they can prove that a person was impaired while in control of a vehicle, or they can prove that they were in control of a vehicle and had a .08 or higher blood alcohol content at the time.

Drinkers with a higher tolerance may not feel impaired at .08, they might even pass some field sobriety tests, but that doesn’t matter under the law. If you’re at.08 or higher and you’re driving, you’re breaking the law.

For narcotics, the standard must include impairment. For now, anyway. Maybe Colorado and Washington will start a trend with their 5-nanogram THC standards.

Important note here: Colorado’s proposal, which is on its third run through their legislature, would let a person to argue that the presence of 5 nanograms in their blood isn’t proof enough of impairment. In the past, the bills didn’t allow for such a defense.

What happens to seized drug money, again?

Fri, 29 Mar 2013 17:31:00 -0400

So the SFPD seized 8.8 pounds of methamphetamine and over $90,000 in cash from a couple suspected of dealing drugs out of a southwest Sioux Falls motel room.

One of my colleagues asked a question that plenty of people probably had when they saw those numbers: What happens to that money, exactly?

Well, I’ve written about this before, most specifically here.

Basically, the Attorney General’s Office uses seized drug money to buy stuff for cops across the state.

It works like this: One of the AG’s deputies files a civil lawsuit against the money, car, or property the cops suspect came from the sale of illicit drugs. If the person who had the money doesn’t contest the suit, the money goes into what’s called the drug control fund, which is used to buy guns, cars and a variety of other stuff for local police departments.

If the person does contest the seizure, arguing that some of the money or property was not connected to drug dealing, there could be a settlement in which they get some of the money or property back.

In other words, according to AG spokesperson Sara Rabern, the amount seized does not equate to the amount the state keeps.

“It’s not black and white,” she said.

It is a fairly large number, though. Here are the numbers since 2006, courtesy of our friend Sara.

FY 06 $750,759.27

FY 07 $1,447,719.89

FY 08 $743,071.90

FY 09 $268,484.58

FY 10 $269,594.13

FY 11 $495,142.67

The number for 2012 isn’t final, she says, but is somewhere in the neighborhood of $400,000.

Here’s a sheet outlining which departments got from 2011 through March 5.

Drug control fund awards by ArgusJHult

Watertown man sues Kristi Noem for failing to stop Planned Parenthood, Obamacare

Fri, 29 Mar 2013 09:04:00 -0400

If you don’t like your Congressional representative, there are plenty of ways to express your displeasure.

Among the options: You can vote against them, run against them, write angry letters to your local newspaper, write angry letters to them, start a blog detailing their failures or protest their local appearances.

None of that stuff was good enough for Charles Haan of Watertown, apparently, who seems to be especially displeased with Congresswoman Kristi Noem.

Mr. Haan decided to sue, alleging that Mrs. Noem has failed to uphold her duties as outlined in her oath of office by failing to de-fund Planned Parenthood, end embryonic stem cell research, end the “killing of the unborn,” “stop the implementation” of Obamacare and failing to vote against the “unconstitutional redistribution of incomes in various forms,” including food stamps.

He originally filed his lawsuit in Watertown, but the case moved to federal court on Wednesday.

Here’s the full filing:

Kristi Noem lawsuit by ArgusJHult

Noem, of course, wants the case dismissed. Her lawyers say Mr. Haan’s claims are “wholly without merit” and that his “facially frivolous” lawsuit ought to be tossed without a single hearing.

Here’s the response.

Kristi Noem lawsuit response by ArgusJHult

Rhiannon White and marijuana in jail

Thu, 28 Mar 2013 21:06:00 -0400

One of the readers who took in this story about Rhiannon White today asked how Mrs. White could bring pot to jail and still get out on bond.
Here’s the short answer: People charged with pot possession in small amounts can usually bond out. The same is true of most misdemeanor charges (not domestic violence, though).
For felonies, a person has to see a judge, who sets bond based on flight risk and danger to the community.
But Hult, you say, didn’t you once write a blog post about how bringing pot to jail gets you a felony “unauthorized articles in jail” charge? Why wasn’t White charged with that?
I was wrong, that’s why. It’s more complex than that, Sheriff Mike Milstead told me today.
It’s not wildly unordinary for a person to show up for booking with some dope in their wallet, pocket, socks, etc, Milstead said. Officers on the scene are often searching for dangerous stuff, so they don’t necessarily find every pipe, paper or half-smoked joint.
At the jail, you lose all your stuff, and change into stripes. Naturally, MIlstead said, jailers will find more contraband.
Jailers don’t automatically go for the “unauthorized articles” charge when they find dope, he says. If someone tries to hide the drugs and smuggle them inside, they’re more likely to get that charge.
White just had the weed in her pocket, allegedly, so she got the misdemeanor charge and bonded out. The Sheriff says White’s bondsman brought her to jail. Then she got a new bail bond from a new bail bondsman. Out again.
Here’s the local bond sheet, listing what it costs to get out for various charges.

FineandBond Local

The state of South Dakota vs. NPR

Mon, 25 Mar 2013 09:58:00 -0400

My broad-brush story about South Dakota’s issues with the Indian Child Welfare Act was accompanied by this more pointed story about a kerfuffle between the state and a national broadcaster.

The story came from now-departed natural resource reporter Cody Winchester (he’s here now), and it outlines the back-and-forth between NPR and the state of South Dakota over an investigative series “Native Foster Care: Lost Children, Shattered Families.”

Gov. Dennis Daugaard took exception to the series before he even heard the story.

His staff preempted the series with this screed, based on assumptions about the story they made through their interactions with the reporter.

Daugaard-NPR-Setting the Record Straight

Once the state heard and read the stories, Daugaard’s people had a few more complaints, largely based on budget numbers.
The ombudsman is investigating and plans to issue a report on the alleged inaccuracies.

The complaints, though, have done little to blunt the impact of the series. Shortly after it ran, Congressional representatives and Senators began to call for hearings on South Dakota’s practice of placing Native children with white families.

Now, two tribes have sued the state, demanding that it do more to comply with the federal Indian Child Welfare Act.

Winchester’s story has lawyer Danny Sheehan saying that more lawsuits are on the way, and the NPR series was a driving force in motivating what he sees as a long-overdue pushback against the state.

I talked to Sheehan for my story, as well. He told me the same thing. I talked to him a bit about the discrepancies in the NPR report, and about our frustration in reporting on the controversy (we haven’t seen the ombudsman’s report).

Sheehan believes NPR got it right. His Lakota People’s Law Project issued a report to Congress saying as much.

He also says questions about whether the series was based on dubious accounting or a had a misleading presentation are less important than the underlying fact the story sought to bring to light: South Dakota has not done enough to comply with ICWA, there are too many Native kids in foster care and too many of them are disconnected from their culture.

The series inspired the tribes to work together on those issues, which assuredly is a big deal.

“There’s going to be a whole series of very real events that will follow this,” Sheehan told me.

If the ombudsman finds fault in Laura Sullivan’s reporting, those things will still happen. Is this an ends justify the means argument? If it is, it isn’t one that I would make. I have serious doubts that Ms. Sullivan would make it, either. It’s likely that she stands behind her series as surely as the state stands behind its accusations about it.

Until the report is released, there’s plenty to speculate about.

The high stakes of abuse and neglect

Sun, 24 Mar 2013 00:36:38 -0400

People who handle abuse and neglect cases often tell me they’re the hardest to deal with. Generally speaking, no kid, parent, relative, lawyer, cop, social service worker or judge would wish for anyone to see the disgusting details of the abuse and neglect situations they’re faced with each day.

It’s sick, sad stuff. Kids get raped or beaten, stuffed in closets or duct-taped to chairs, starved for days and weeks, shiver in homes with no heat, huff the second-hand dope smoke of adults and throw away juice boxes in overflowing, uncovered trash cans with hypodermic needles on top.

Kids watch grown-ups do very grown-up crimes to one another at ages so young that they come to see criminal behavior as a way of life.

Through it all, plenty of the kids still love and want to be with their parents, and they don’t necessarily understand why they’re not allowed to see Mom and Dad.

If a neglect case turns out unsubstantiated, if the cause for removal proves unfounded, kids come back with the understanding that their home is a thing that can be broken up by someone from the outside.

A driving idea behind the Rosebud and Oglala Sioux tribes’ recent lawsuit against the state is that the bar for putting a kid through that ought to be higher, and that a lot more kids need to come home sooner.

A quote from one of the lawyers on the lawsuit, which appears in my story this Sunday, probably sums it up:

“If the parent is getting drunk, do they really need to lose their kids for 60 days?” Dana Hanna said. “It’s just crazy.”

Perhaps the sickest, saddest situation is when a child is removed from a dangerous home and put somewhere “safe” by the state, only to be abused, neglected or assaulted again.

The actions of a one-time state Republican legislator named Ted Klaudt brought this scenario into focus in 2007.

Klaught raped some of his foster children in a bizarre “egg harvesting” scheme that involving “examinations” of the teens. Klaudt was charged with and convicted of rape involving 16- and 18-year-old girls. He’s currently in prison in Springfield.

Another case of sexual abuse, involving Native girls, stirred controversy last year. Richard and Gwedolyn Mette had Native kids in their care in Aberdeen. Former Brown County Deputy State’s Attorney Brandon Taliaferro charged Mette with raping two of four sisters. Mette is in prison in Sioux Falls for raping an 8-year-old victim.

The Mette case caught national attention because of the involvement of Taliaferro and a court appointed special advocate named Shirley Schwab. They were charged with witness tampering in the Mette case by the Attorney General’s Office, which alleged that the pair had disclosed confidential DSS information.

Taliaferro’s case went to trial, but Judge Gene Paul Kean tossed it as soon as prosecutors were done, saying there simply wasn’t enough evidence to proceed. Defense attorneys didn’t have to present their side. Schwab’s case was tossed, too.

The Lakota People’s Law Project says the state was retaliating against the two for blowing the whistle on the removal of Indian children unnecessarily and the glossing over of problems in white foster homes.

Don’t be surprised if the Taliaferro case results in another lawsuit against the state.

As I said, any case of kids removed for their own safety and re-victimized in supposedly safe environments is especially disturbing.

But disturbing is the nature of abuse and neglect. Let’s consider the 1990 South Dakota Supreme Court case that established some ground rules for when it’s okay for the state to deny a tribe’s petition to intervene in a case.

The Indian Child Welfare Act gives tribes the right to intervene in custody cases involving Indian kids unless “good cause” can be shown that intervention would result in the kid or kids being placed in imminent danger.

The South Dakota Supreme Court denied the Standing Rock Sioux Tribe’s petition to intervene after a Native grandmother’s custodial rights to two children were terminated in the matter of The People of South Dakota in the Interest of J.J. and S.J., children, and concerning V.J., grandmother.

The details of that case give one a better understanding of what we talk about when we talk about “good cause” as the state of South Dakota sees it.

Here are some facts from the decision, but be warned: It’s unsettling.

“On New Year’s Day, 1987, Officer Blenner of the Rapid City Police Department, was called to the [J] home on an emergency call placed by [V.J.]. When the officer arrived at the door, an intoxicated and apparently unconcerned woman, later identified as [V.J.], nodded toward the back of the house and said, “The problems back there.” The officer was reluctant to enter the home on such cryptic information, but nonetheless ventured into the back bedroom. There she saw a small girl bleeding profusely from the vagina. In the room were [V.J.’s] son [G.] and two older females. That morning [V.J.] had thrown [G.] out of the house for having a woman in his bedroom. He returned later that afternoon. When asked at the hospital, four and one-half year old [S.J.] said in the presence of [V.J.] and Doctor Burnett, “[G.] did it.” Two physicians, a gynecologist and a pediatrician, examined [S.J.] and concluded to a reasonable medical certainty that she had been sexually assaulted. The doctors repaired a two inch gash along the vaginal opening. Despite these medical conclusions and despite the fact that [G.] was the only male in the home at the time the assault occurred, [V.J.] refuses to even brook the notion that [G.] sexually assaulted [S.J.]. “[G.] does not lie,” says [V.J.], and that ends the matter for her. To make matters worse, [grandmother] intimates that if similar events occurred in the future, she would still have to believe [G.].

In addition to the specifics of the rape incident, the trial court’s memorandum decision makes specific mention of the following highly relevant facts:

1. V.J. has a long history of intermittent alcohol abuse.

2. V.J. repeatedly entrusted the children to persons wholly unfit to care for them. Both children were sexually abused while in V.J.’s custody by another uncle B.C. (k/a “Bimbo”) as well as by G.

3. Both children were being physically abused while in V.J.’s custody. J.J. has permanent scars from burns on her buttocks which appear to be inflicted. She also had black and blue marks on her body, which she said *323 grandmother caused by hitting her with a shoe.

4. V.J. also permitted their birth mother, R.J., to take the children in a car when she knew that R.J. was likely to abuse alcohol.

5. Both R.J. and G. now live with grandmother. G. is violent and uncontrollable when intoxicated, as he was on January 1, 1987. V.J. concedes that G. dislikes S.J. and J.J. because “they get on his nerves.”

6. V.J. refuses to believe that she or her son played any part in the injuries to the children.

I can scarcely imagine the toll these cases take on the people making the decisions.

Your right to a lawyer turns 50 today

Mon, 18 Mar 2013 16:41:00 -0400

Today is a big day, symbolically-speaking, in the world of criminal defense.

You see, 50 years ago, the U.S. Supreme Court issued its opinion in the case of Gideon vs. Wainwright and guaranteed everyone the right to an attorney. Hard to believe this has only been set in stone for 50 years, but there it is.

When Clarence Gideon was arrested for theft in 1961, the state of Florida didn’t offer attorneys for criminal defendants unless they were charged with a capital crime. Gideon got five years in prison, and used his time there to write his own appeal to the high court.

The court decided to hear the case. That’s when Gideon finally got a lawyer. He won at the Supreme Court level, and the opinion insured that any other person in his shoes would get a lawyer, even if they can’t afford it.

Gideon was then given an lawyer in the underlying Florida theft case and earned an acquittal.

The lawyers at the Minnehaha County Public Defender’s Office, not surprisingly, feel pretty strongly about the Gideon decision. On Saturday, a mess of them ran in the St. Patrick’s 5K run wearing Gideon t-shirts.

Here’s a group shot of the “Gideon Gallopers.”

On the back, the shirts have a quote from the opinion:

“Lawyers in criminal courts are necessities, not luxuries” - Justice Hugo Black

Of course, the delivery of legal representation hasn’t arrived exactly as the Justices imagined. That’s how reality works.

In some states, public defenders are so overworked that they’ve actually turned people away.

The USA Today has Al Flora, a Luzerne County, Pa. public defender, talking about the overload in his office. I was struck by this quote:

He says some public defenders “don’t want to talk about the problem. I decided to go the other way. This has to stop.”

Flora’s right. Plenty of public defenders don’t want to talk about it. That’s because every day, in every prison and every jail, there are inmates complaining about their lawyer. Plenty of them think they can’t get quality representation from a court-appointed lawyer, that they’re offered the dregs of the legal work force while the well-off get spit-shined legal hotshots who lavish them and their case with attention.

Traci Smith (She’s number 730 in the photo), the Minnehaha County Public Defender, has always denied this charge in vigorous fashion.

Her lawyers are smart, hard-working people who do some of the most difficult cases in the state, she says. Their heavy caseloads and the variety of cases they take make them better lawyers, she says.

She’s also told me on numerous occasions that she’d stack their work up against the work of a private lawyer any day of the week, thank you very much.

That doesn’t mean she’s living in La La Land. The office needs more help, and she tells Minnehaha County Commissioners as much every year at budget time. State’s Attorney Aaron McGowan does the same thing, frankly. Growing counties tend to have growing caseloads.

When I emailed Smith to ask about the Gideon Gallopers, she offered the following stats:

“We opened 6,855 cases last year. Our stats showed we should have had 26 attorneys to meet the caseload demands for the number of cases we closed last year. We currently have 22 attorneys. We closed 6,298 cases in 2012, which was up from the 5,514 we closed in 2011.”

So will there come a day when Public Defenders in Minnehaha County are so overwhelmed they refuse to take on new cases, similar to the Pa. office profiled in USA Today?

You check your crystal ball, I’ll check mine.

How to ask for trouble

Thu, 07 Mar 2013 22:59:45 -0500

Once you’re in trouble, it’s incredibly easy to get into more trouble.

To illustrate, let’s talk about a young man named Stephen Charles Cox. My colleague Dalton Walker wrote a blurb about Mr. Cox’s recent interaction with Sioux Falls’ finest that demonstrates this point quite clearly.

The allegation is as follows: Cox and a buddy named Tyler Easley were banging on someone’s door so loudly Wednesday afternoon that the person inside called the cops.

When the SFPD arrived, Easley stuck around and Cox bolted. He had a handful of warrants and supposedly had meth in his pocket, so one can might assume the arrival of police was unwelcome.

Even so, running made things worse.

Cox made it about a block and a half (and chopped his hand open trying to jump a fence) before the cops caught him.

Now, instead of an arrest for the warrants, Cox was charged with fleeing law enforcement. He re-portedly didn’t tell the police about his meth when they caught him, either, so he was charged not only with possession of a controlled substance, but possession of unauthorized articles in jail.

So that’s three charges, two of which came through uncooperative behavior. Those charges will give prosecutors leverage in plea agreement negotiations, as they’ll be able to say “if you go to trial, you could be convicted of everything and serve a lot more time than if you just plead to charge X and let us drop the rest.”

This is an relatively common scenario. Let’s imagine Jerry Fakename is hanging out in the park after hours and gets approached by a cop. Mr. Fakename has a joint in his cigarette pack and a warrant for failure to appear on a suspended license charge, so he freaks out and runs before the cop says word one to him.

So that’s fleeing police.

The cop catches Fakename, but he really, really, doesn’t want to get busted, so he wiggles and flails his arms around as the cop cuffs him.

That’s resisting arrest.

Fakename is really pissed about being cuffed and stuffed, so he kicks at the cop after being placed in the back of the police cruiser.

That’s simple assault on a law enforcement officer, which is a felony.

The cop asks Fakename who he is. Fakename calls himself Jerry Fakester.

That’s false impersonation.

Finally, the cop asks if Fakename has anything illegal on him, and Fakeman says no. Then the jailers find his joint at booking.

That’s possession of unauthorized articles in jail. Also a felony, that one.

Now Fakename has five charges, in addition to the warrant. If he’d have stayed put, there’s a chance the cop would have said “park’s closed, buddy. Better move on out.”

The moral of the story is this: Running, kicking and screaming is usually not going to help.

Vij Misir wants to travel the world. Prosecutors don't like that idea at all.

Mon, 04 Mar 2013 15:56:00 -0500

Vij Misir, a convicted felon, wants permission to travel abroad for work.

Normally, the request might not qualify as outlandish. Probation officers are generally willing to work with people who are gainfully employed, and usually want to do what they can to keep their felons employed.

Mr. Misir’s case is anything but normal, though.

Do you remember Vij Misir? I do. So do the lawyers at the U.S. Attorney’s Office, who oppose his request for international travel rather vigorously.

Misir faked his own death in 2003, you see, and he and his then-wife Rajmatee Kapadia collected a $1.5 million dollars in life insurance money from a South Dakota company and another $495,000 from a different company.

Five years after his “death” from food poisoning in Malaysia, which Kapadia backed up with a phony death certificate and false testimony from supposed witnesses, Misir appeared at the U.S. Embassy in Jakarta, Indonesia and tried to renew his passport.

Shortly thereafter, Misir and his wife were charged with mail fraud in the U.S. District Court of South Dakota. Being alive after the commission of a criminal offense does tend to put one back under the jurisdiction of the appropriate authorities.

In any event, Misir was sentenced to 36 months in prison and ordered to pay nearly $2 million in restitution.

Because he’d been in jail since 2009, he was given credit for the time he’d served in the Minnehaha County Jail (where he taught yoga and meditation to his fellow inmates) and ended up spending only a year in federal prison in his home state of Florida.

This month, Misir made his request to travel in the form of a “motion to modify conditions of supervised release,” which included a letter from his employer, Signa Energy Solutions of Naples, Fla. Managing Director John Basic Sr. wrote that Misir is a director of operations with “vast knowledge of energy fuels, coal mining, power plants, and construction matters” that have made him “indispensible for the company.”

With potential projects in “Haiti, Guyana, Jamaica and Suriname and in the Caribbean region,” Signa needs him to travel.

As I said, the U.S. Attorney’s Office doesn’t think this is such a good idea. In a written response to Misir’s request, they ran through the facts of the underlying case, noting that Misir eluded detection by globe-hopping.

They also point out that Signa Energy has only existed since shortly after Misir’s release last July, and that the last name of at least two of the corporate officers matches the last name of the girlfriend Misir had while hiding out in Thailand. They think that’s fishy.

The prosecutors call Misir a “flight risk,” which is the term they use when they’re worried that someone will disappear and fail to live up to their obligations to the court system.

Kapadia doesn’t want Misir to move freely about the globe, either. She’s incarcerated until May, having pleaded guilty to mail fraud, but she apparently caught wind of Misir’s request.

Kapadia’s lawyer also filed a motion in opposition to Misir’s request, saying that he hasn’t paid any child support since his release. That lawyer, Pamela Bollweg, also used the term “flight risk.”

Bollweg writes that Misir owes $45,500 in child support for his 17-year-old daughter (who, by the way, thought her dad was dead until 2009).

On Misir’s side, lawyer Clint Sargent wrote that the probation officer supervising his client approves of the plan, but “it is the policy of her office to only allow international travel with the express permission of the sentencing court.”

Misir made his request on Feb. 25. The government and his ex-wife and co-conspirator filed their opposition motions last week.

The ball is now in the court of U.S. District Judge Lawrence Piersol.

He sentenced both Misir and Kapadia. I’d bet he remembers the case, too.

Here’s Vij leaving the courthouse on Phillips in 2011.

Here’s Rajmatee putting her coat on. Her lawyer, Pam Bollweg, is the one in blue.