A South Dakota judge on Friday ordered state officials, including Gov. Kristi Noem, to stop releasing evidence which may influence a criminal case against the state’s own attorney general.
As Law&Crime previously reported, South Dakota Attorney General Jason Ravnsborg is accused of careless driving, operating a motor vehicle while using a mobile electronic device, and a lane-changing violation. Each charge is a “Class 2” misdemeanor which carries a maximum penalty of 30 days in jail and/or a $500 fine.
Ravnsborg said he thought he had hit a deer last September while returning home from a political event. He really hit and killed Joseph Boever, 55.
The judge’s order appears directly linked to a decision earlier in the week by state officials to release a recording of Ravnsborg’s police interrogation. As Law&Crime previously noted, the video revealed Ravnsborg was reading “some conspiracy” (as the investigators described it) on his cell phone involving Joe Biden and China right before the deadly crash occurred. That key moment is cued up in the interrogation video below:
The video also revealed that Boever’s glasses turned up inside the A.G.’s Ford Taurus after the accident.
Ravnsborg denied knowing anything about the glasses. An investigator challenged him.
“His face was in your windshield, Jason,” an interrogator said. “Think about that.”
South Dakota Judge John Brown, of the state’s Sixth Judicial Circuit, agreed with a motion filed by Ravnsborg’s attorneys to, as the Judge explained, “preclude the release of criminal investigation information” in the future. But the order also forced the state to backpedal on the release of the widely viewed interrogation video.
The judge ordered that “the Department of Public Safety, law enforcement, or any member of state government, including Governor Kristi Noem, [be] precluded from producing any further criminal reports, interviews, test results, digital media, photographs, videos, statements, or anything whatsoever related to the above-captioned matter to the public.”
The judge also ordered that previously released materials “should” be removed from websites and other online accounts controlled by the state.
“[T]he links to the law enforcement video interviews of Jason Ravnsborg to information having already been made public should be removed by the South Dakota Department of Public Safety and any and all other State agencies having such links to prevent the public from having access to information which would be hearsay at a trial of this matter,” the judge said (emphasis added).
The Sioux Falls Argus Leader interpreted the order as one which forced the state to remove links to the aforementioned interrogation from state-controlled online media accounts and websites.
That’s the most logical interpretation of the order on its face: the judge wants the state to take down the videos. But what’s awkward about the order is that the A.G.’s statements are not hearsay. Let’s walk through the relevant law to understand why.
(1) The declarant does not make while testifying at the current trial or hearing; and
(2) A party offers in evidence to prove the truth of the matter asserted in the statement.
The key to understanding the conundrum is that there are exemptions from the definition of hearsay contained within the rule itself.
As Rule 19-19-801 explicitly states, two types of evidence that would ordinarily be hearsay are legally deemed to be “not hearsay.”
The first of the two exemptions involves “[a] declarant-witness’s prior statement.” That exception doesn’t work unless Ravnsborg takes the stand and can’t keep his facts straight; it only applies if “[t]he declarant testifies and is subject to cross-examination about a prior [inconsistent] statement,” if the out-of-court statement is necessary to prove that the person testifying is telling the truth after he has been accused of lying, or to properly identify a person if a declarant gets confused on the witness stand.
The second of the two exceptions is key. It involves “[a]n opposing party’s statement.”
Put simply, if a person who is party to a lawsuit says something outside court, that statement can come into court if the person who said it “adopted or believed it to be true.” (The other subsections of the rule are not relevant here.)
Arguably, then, Ravnsborg’s statements are exempt from the definition of hearsay under Rule 19-19-801(d)(2)(A) and (B). Ravnsborg, as an opponent to the state in a criminal matter, is a party to lawsuit who made statements outside of court which he believed to be true. Therefore, his videos are not hearsay — despite what the judge’s order says.
However, it’s unlikely state government actors will try to test the judge’s order on the grounds that it only applies to hearsay — which the interrogation is not. The Sioux Falls Argus-Leader reported that the governor’s office and the Department of Public Safety pulled down the requisite videos as of Friday evening. At best, then, the order is a dubious written interpretation of South Dakota’s own rules of evidence — all made in a futile attempt to keep the public from watching potentially incriminating and almost certainly embarrassing videos of the attorney general in a police interrogation room. The video has already been widely copied, shared online, and broadcast on local television newscasts in the Mount Rushmore State. The bell, as they say, cannot be unrung.
The situation keys up an age-old battle between the Sixth Amendment rights of criminal defendants to be tried by “impartial” juries and the First Amendment rights of others — even prosecutors — to keep the public reasonably informed about ongoing cases. Ravnsborg, as the state’s chief law enforcement officer, occupies a position normally used by others in similar roles to release information prior to trial — but Ravnsborg the defendant is now arguing against such releases.
Attorneys must follow ethics rules which attempt to balance the competing constitutional interests. However, in most states, attorneys are still allowed to discuss information contained in the public record prior to trial.
Prosecutors have a legal duty not to say things that risk “heightening public condemnation of the accused,” and they must also try to keep a lid on the comments of “law enforcement personnel, employees,” or “other persons assisting or associated with the prosecutor” from causing undue prejudice to a defendant’s reputation.
Michael Moore, a prosecutor from Beadle County who reportedly “assisted the Hyde County State’s Attorney’s Office in the investigation and charging decision,” disagreed with the State Department of Public Safety’s decision to release the evidence.
“You can draw your own conclusions on why they released what they released and their motives behind doing so,” Moore told the Argus Leader. “That’s not for me to say. As far as I know they released two videos. There’s a lot more evidence.”
Ravnsborg is a Republican. Gov. Noem, who called on Ravnsborg to resign, is also a Republican. Both houses of the state’s bicameral legislature are controlled by Republicans. A legislative resolution to impeach Ravnsborg is bipartisan. Ravnsborg has said he will not step down.
Authorities previously released Ravnsborg’s 911 call. It was also removed from state websites. It’s available elsewhere:
Ravnsborg’s toxicology test results were also among the data the state pulled from the web pursuant to the judge’s order.
Read the judge’s one-page order below:
[image via Dep’t of Public Safety Interrogation Video]
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