Prosecutorial discretion and why Jackley for Governor is a bad idea

by DB Cooper

Prosecutorial discretion is a powerful thing. It gives a prosecutor the ability to decide which defendants get to experience the full power of the state's criminal justice apparatus being applied to convict them, and which defendants get a slap on the wrist, or maybe even a wink and a nod. This is a huge amount of power in the hands of just a few people. In South Dakota, of those few, Marty Jackley is the most powerful.

Jackley used his discretion as a prosecutor to arrange a plea bargain with Joop Bollen. The deal closed the state's embarrassing involvement in the EB-5 program. A lot of money went missing, a lot of interesting transactions involving public money went in and out of Joop Bollen's hands. Some of it never to be seen again. Attorney General Jackley decided it was in the best interest of South Dakota to let Joop plea guilty to some charges and "cooperate" and in exchange, Joop would serve no time in prison. Perhaps Jackley felt the cost of an extended prosecution of a complex financial matter wasn't worth the expense. In fact, at one point, Jackley walked away from investigating the scandal claiming it was a federal problem. Or maybe Jackley was afraid that if the case did go to trial, he would lose. Juries sometimes do that. Would we have thought any less of Jackley if he had explained that taking the case all the way to trial was that important? To defend the taxpayers, and do everything possible to prosecute corruption, win or lose?

Jackley's prosecutorial discretion can be questioned in the Gear Up matter. The state auditor reviewed the program and found millions missing or misappropriated. Jackley was told about it not by the auditor, but by South Dakota's hardest working reporter Bob Mercer. According to Mercer, no one in the AG's office was routinely working with the auditor concerning the auditor's findings, some of which like with the Gear Up program, were ripe for criminal investigation and prosecution. What else may have been missed?.

The Mette case is a continuing tragedy. The aspect of the whole sad story that pertains to discretion is why Jackley did not use his office to intervene in the senseless prosecution of Brandon Taliaferro and Shirley Schwab. Both were charged with coaching the Mette children in making accusations against their parents. The case against Taliaferro, the original state's attorney prosecuting Mette, and Shirley Schwab, a court appointed child advocate, was very weak at best. It was no surprise that both were ultimately vindicated on all charges. But both were broken by the experience. Both suffered the loss of reputation in their community, the loss of the trust and respect of their friends and neighbors. Broken financially as well. It can cost thousands and thousands and thousands to defend against even the most spurious of charges. The state has enormous resources and all the time in the world to grind away at a defendant's savings and life. The process is the punishment. It would not have taken much for the Attorney General's office to put an end to this, but it didn't. The process cleared Taliaferro and Schwab, but the process also inflicted severe punishment that was not deserved on two innocent people.

As Governor of South Dakota Jackley would be the most powerful official in the state. He would have far more power -- discretion -- than he does now. As Attorney General, Jackley has exercised prosecutorial discretion, and these examples speak for themselves. Do they recommend giving him more power, or do they represent a warning?