U.S. Attorneys in Rapid City have dropped two criminal cases that involved the same FBI agent who's been transferred to another office.
After arguing against motions from the defense lawyer for more than three years, prosecutors asked for the rape case against Tolin Gregg to be dismissed. They also asked to dismiss the three-year-old case against Terry Featherman, who had been charged with two counts of aiding and abetting felony child abuse.
The indictments should be dismissed "for the reason that the interests of justice will best be served," both motions to dismiss say.
Ace Crawford, spokeswoman for the U.S. Attorney's Office in South Dakota, said she can't further elaborate on why the cases were dropped.
Judge Jeffrey Viken granted both motions, ordering the Gregg case dismissed on Dec. 20 and the Featherman case on Nov. 19.
FBI Special Agent Mark Lucas was involved in both cases by interviewing Featherman and Brylee Red Owl, a witness in the Gregg case. Featherman and Gregg's defense lawyers argued that there were inconsistencies between the recorded interviews, Lucas' written reports about the interviews and his testimony to the grand jury, a private hearing where jurors decide if probable cause exists to indict someone.
And judges agreed.
Magistrate Judge Daneta Wollmann and Viken found that Lucas gave false testimony in the Gregg case, while Wollmann wrote that Lucas gave inconsistent statements that were crucial in charging Featherman.
Lucas is no longer working in South Dakota but his transfer has nothing to do with these specific cases, said FBI spokesman Kevin Smith.
He "transferred based on existing FBI transfer policy and that transfer was unrelated to any specific investigation or outcome," Smith said.
Gregg was indicted in March 2017 on two counts of aggravated sexual abuse by force for allegedly raping a 17-year-old girl in December 2016 near Kyle. Gregg, who was 18 at the time of the incident, pleaded not guilty and planned to take the case to trial where he would argue it was consensual sex.
Lucas falsely told the grand jury that Red Owl said that Gregg raped the girl in his car because a recording of Red Owl's interview proves that he never said the word rape, Viken wrote in an order. The agent then falsely said Red Owl saw a bruise on the girl's face when he actually said he only saw a cut. Lucas was also "misleading at worst and unresponsive at best" when he discussed Red Owl's description of the girl's reaction to the alleged rape.
"It is exceedingly rare for a judge to make an express finding that a law enforcement officer gave false testimony. I have only seen it a couple times," Neil Fulton, dean of the University of South Dakota School of Law, previously told the Journal.
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Wollmann also found that Lucas intimidated Red Owl during the interview, so it can't be used during trial. Viken said he found the threats were "likely ... improper" but ruled the interview can be used.
Dana Hanna, Gregg's defense lawyer, later filed a motion asking Viken to toss the indictment, arguing that the false testimony, witness intimidation issue, and the fact that Lucas knew Red Owl took a video of the girl after the alleged rape but never watched or obtained it "constitute a pattern of governmental misconduct."
Viken referenced Lucas' "conspicuous failure" to collect the video that would be helpful to the defense, but ruled in September that he wouldn't dismiss the indictment.
Then, three months later, prosecutors filed their own motion to dismiss the indictment.
Featherman was one of seven suspects arrested in the November 2016 case of two toddlers found so emaciated on the Pine Ridge Reservation that a doctor said they were near death and looked similar to Holocaust victims starved in concentration camps. The 2- and 3-year-old girls weighed just 13 pounds.
Lucas signed an affidavit saying that Featherman, the victims' uncle, occasionally stayed at the home with the children and admitted to knowing about their condition and one of the child's hip sores. The document says Featherman admitted the children's health was declining but he didn't do anything about it since he wasn't their caretaker.
In August 2019, Greg Erlandson, Featherman's defense lawyer, filed a motion asking for the disclosure of the usually private grand jury transcript used to indict Featherman because he believed there were discrepancies between Lucas' grand jury testimony, his affidavit, the recorded interview with Featherman, and his written report summarizing the interview. Erlandson said his client never said that the children's heath was declining or that he knew about the hip sore.
Erlandson also cited Lucas' "pattern of making inconsistent statements," a reference to the Gregg case.
In their response, prosecutors wrote that Featherman said the children were thin and that he didn't speak up on their behalf because he would have been beat up. And they said failing to report the abuse counts as aiding and abetting.
Wollmann wrote in an order that prosecutors never addressed Lucas' inconsistencies but instead referred to them as "alleged minor inaccuracies." She said these aren't minor inaccuracies since they "were crucial to linking Mr. Featherman's involvement in the criminal activity."
Wollmann ordered the transcript to be shared with Erlandson given these inconsistencies and Lucas' false testimony in the Gregg case.
"The grand jury transcript showed, unequivocally, the unfortunate truth that SA Lucas provided misleading and untruthful testimony," Erlandson wrote in a motion asking for Featherman's indictment to be dismissed.
He said the transcript shows that Lucas told the grand jury that Featherman admitted seeing the children “in the state that they were found:" horribly emaciated, covered in bruises and wounds, and unable to move with vision problems. But the recorded interview shows that Featherman didn't say he saw any of these things, that he only acknowledged the children being "skinny" and "thin."
Erlandson said the incident should be dismissed because Lucas' testimony that Featherman knew how starved and hurt the children were "was at best misleading and, at worst, a lie," and the jurors probably wouldn't have indicted him if they had been provided accurate information.
Prosecutors never responded to the motion to dismiss that Erlandson filed in October and instead filed their own motion to dismiss the next month.
Wollmann also ordered the disclosure of the grand jury transcript for co-defendant Harold Red Owl since there are "major discrepancies" between Harold's interview and how Lucas described their conversation in his affidavit and written report of the interview.
But before Harold and his lawyer received the transcript, he decided to plead guilty to two counts of failing to report child abuse and was sentenced to time served. Harold is the long-time partner of Roberta Featherman, who had custody of one of the emaciated girls, according to the factual basis document he signed. He knew they were being starved and abused but did not report it.
Roberta's case is ongoing while Darshan Featherman, who had custody of the other child, was sentenced to 10 years in prison after pleading guilty to felony child abuse and admitting to withholding food from the 2-year-old girl.
— Contact Arielle Zionts at firstname.lastname@example.org.