State courts in the Black Hills area are limiting in-person hearings to help prevent the spread of coronavirus among defendants, spectators, lawyers, deputies and anyone else who may be in courts or jails.
Craig Pfeifle, presiding judge of the 7th Circuit Court — which includes Pennington, Custer, Fall River and Oglala Lakota counties — signed his third virus-related order on Monday.
The new order says judges should try to hear no more than five cases per each 15-minute hearing block.
Defendants can be arraigned for felony charges through a sworn affidavit rather than appearing in person, the order says. The affidavit must cover all of the topics that are addressed during arraignments. For example, the defendant must say that they understand their charges, maximum penalties and constitutional rights. They can also plead not guilty or not guilty by reason of insanity in the affidavit.
Defendants no longer have to attend hearings where "no substantive action is taken," such as status and scheduling hearings, the order says. Judges can also allow lawyers to request delays and submit non-evidentiary motions by email, and judges can choose to respond by email as well. Judges should "liberally" grant requests for delays.
Except for trials, defendants and witness can attend hearings by phone or video.
Change-of-plea and sentencing hearings by waivers and affidavits are "expressly encouraged," the order says. It's unclear if this applies to felony or only misdemeanor cases, and which parties must approve of conducting these hearings in this manner.
The Department of Corrections and Gov. Kristi Noem said they’re not planning on conducting any special releases from the state’s prisons during the coronavirus outbreak.
“At this time, DOC has no plans to change inmate release dates due to COVID-19,” spokesman Michael Winder said Friday when asked about early releases for elderly or sick inmates, for anyone near the end of their sentence, or for work-release inmates who are already considered safe to work in public.
Public health officials say the best way to prevent COVID-19 is to avoid large crowds and close contact with others, and keep yourself and your surroundings clean.
This is often difficult or impossible to do in jails and prisons, which house hundreds of people in close quarters, and have workers and new inmates — some from out of state — coming and leaving each day. Inmates also have access to fewer sanitation products than those in the outside world.
The ACLU specifically asked Noem to grant commutations to:
All prisoners whose sentences are ending within a year
All prisoners being held on probation or parole violations
All prisoners vulnerable to COVID-19 (as defined by the CDC, so elderly people, immunocompromised people, etc.) whose sentences end within the next two years.
Noem is not planning on doing this, said spokesman Maggie Seidel.
The ACLU also wants the Board of Paroles and Pardons to institute a presumption of release for everyone who has a parole hearing scheduled in the next two years, and to hear those cases as soon as possible. It also wants the parole board to hear cases of vulnerable prisoners, even if their parole hearing date is further away.
The board is meeting next month and elderly and seriously ill inmates are allowed to apply for early release under “compassionate parole” laws, Winder said.
The DOC and its health-care provider, the Department of Health, have prevention practices for contagious diseases such as COVID-19, Winder said.
As long as inmates don’t forfeit their work release status due to disciplinary action, they will be allowed to return to their work sites once the work restriction is lifted. Inmates who are terminated by their employers during the work restriction will be allowed to apply to new jobs.
“The purpose of CTP is to prepare offenders for release” so the DOC will continue to only release CTP parolees when they have an approved community plan and housing arrangement.
“Earned discharge credits for both program completions and work will be reviewed,” Winder said when asked if inmates and CTP parolees will continue to earn early release credit while they can’t work.
In accordance with Noem’s executive orders, DOC offices are remaining closed to the public and non-essential employees will work remotely as possible thought March 28. No staff is allowed to travel outside South Dakota.
The population of the Pennington County Jail has decreased by nearly 12% between March 11 and Friday, March 20, in an effort to prevent inmates and workers from contracting coronavirus.
“Our jail population numbers are way down and very deliberately,” said State’s Attorney Mark Vargo.
Vargo said it’s important for the jail to have some empty areas in case an inmate contacts COVID-19 and needs to be quarantined.
“We’ve been working collaboratively with all the stakeholders to really ensure the critical constitutional rights of our clients are protected and also trying to reduce the jail population so that our clients that are not going to be able to bond out pending their case are further protected as well as our staff,” Public Defender Eric Whitcher said.
There were 582 people in jail on Wednesday, March 11, according to Chief Deputy Brian Mueller. By Friday, the jail population was at 513, a nearly 12% decrease.
The jail population usually fluctuates by 5% from week to week, Mueller said.
Public health officials say the best way to prevent COVID-19 is to avoid large crowds and close contact with others and keep yourself and surroundings clean.
This is often difficult or impossible to do in jails and prisons, which house hundreds of people in close quarters, and have workers and new inmates — some from out of state — coming and leaving each day. And inmates have limited access to sanitation products.
Vargo said he, Whitcher and representatives from the sheriff’s office and Rapid City Police Department communicated March 12 and 13 to discuss how the criminal justice system should respond to the viral outbreak.
Judge Craig Pfeifle didn’t directly say he’s trying to clear out the jail, but wrote several directives that if followed, would help lower the population.
For example, he said the Jail Population Review Team must review bond for all non-violent offenders and recommend release conditions for judges.
Defendants who don’t appear in court are sometimes arrested and jailed, but Pfeifle said those who fail to show up for misdemeanor and non-violent felony charges will be excused “for public health.”
Those on probation are also sometimes jailed or required to appear in court for violating conditions, but probation officers can now consider delaying sanctions, Pfeifle wrote.
The order says jailed defendants' cases must be prioritized over those who are living in the community, and an order by the Chief Justice of the South Dakota Supreme Court suspended the state’s 180-day speedy trial rule.
Whitcher said he agrees with these orders because even though it's upsetting for free defendants to have their cases delayed, it’s essential to focus on the safety and constitutional rights of those in jail.
“The people who are most vulnerable are those who are in custody,” especially those who are more susceptible to contracting COVID-19, he said.
For inmates who won’t be released from jail, he said, the goal is to come to plea deals or conduct trials as soon as possible so they are either found not guilty and released, or convicted and sentenced.
By March 18, the jail population decreased to 524 people, a nearly 10% drop from the week before.
Pfeifle personally freed three out of five defendants during a 9 a.m. arraignment hearing the next day. By Friday, the jail population was at 513.
Vargo said his office is “asking law enforcement to consider citations rather than arrests” for low-level crimes when possible.
“We have long encouraged officers to utilize good discretion when deciding whether to issue a citation or make an arrest,” police spokesman Brendyn Medina said when asked if officers will be working to reduce arrests. “Obviously, this is a new factor to consider out of many, but we are extremely confident our officers are making good decisions in the best interests of public safety.”
Prosecutors are also “adjusting our bond requests accordingly,” Vargo said.
Vargo said his office will still request their usual bonds for people who have multiple DUIs, have a history of violent behavior, or are accused of a violent or sex crime.
But his office will request no or low bonds for people who “wouldn’t have normally” gotten out, such as those who failed to appear in court or broke multiple non-violent probation rules. “We’re taking some risk,” Vargo said.
Vargo said his office also worked with judges and “significantly reduced” the amount of pre-trial defendants and probationers attending the 24/7 drug and alcohol testing center.
Mueller said he doesn’t have statistics but agrees there’s “been a significant reduction.”
“24/7 sobriety testing has been a challenge during this time across the state as we bring a high volume of individuals together two times per day and have them blow through a preliminary breath tube at close distance with our staff and in close proximity to each other,” he said.
COVID-19 can be spread through respiratory droplets, which may be produced when blowing into a tube.
Some people are going to 24/7 less often, some are being monitored outside of the center through patches and bracelets, while others have been completely taken off the program, Vargo said.
The Care Campus and adult and juvenile jails worked with its medical staff to create detailed plans for preventing coronavirus and how to respond if someone contracts the disease, Mueller said.
"We do have high confidence in our medical team and our facilities, and we will continue to evaluate the situation," he said.
Inmates and Care Campus clients are screened before entering the facilities, and they all have free soap for hand washing, Mueller said.
Sick call visits at the adult jail cost $5, but it’s free for inmates who can’t afford to pay. COVID-19 testing is free.
The adult and juvenile jails have temporarily ended in-person visits and on-site video visits from friends and family. They can continue to communicate with them through letters, phone calls and remote video visits. Adult inmates also have access to an email service.
The jails have not lowered or cancelled the cost of these services, Mueller said.
Lawyers, clergy and volunteers are still allowed in the jails. Inmate group programming and work programs — both inside and outside the jail — are continuing.
Whitcher said public defenders are transitioning to working at home, because if one of them tested positive for the virus, it would create a “reverberation throughout our entire office” since everyone else would have to be tested and quarantined.
“If we can’t go to court because of a quarantine for all of our attorneys, the criminal justice system would be severely impacted,” he said.
Defense lawyers are trying to limit in-person conversations with their clients and instead speak over the phone or meet in jail, which has booths with a glass divider.
Vargo said prosecutors are also working at home when not in court and are avoiding meeting with victims and other witnesses in person.
We’ve “virtually eliminated in-person witness interviews,” he said.
Social distancing is much more difficult for deputies, police officers and correction officers.
“We recognize that the specific public safety services we provide to the community makes it unfeasible to maintain the social distancing measures that other organizations are employing to mitigate the risk of exposure to this virus,” Medina and Mueller said in an email. “That said, our work must go on in order for the continued safety and well-being of the community.”
They said workers are keeping safe environments at the work areas and patrol vehicles, and the agencies have “plans to mitigate exposure as best as we can” if an officer or deputy comes across someone showing signs of coronavirus.
New legal orders taped to a glass door greet visitors to the Pennington County Courthouse.
A March 18 order warns people not to enter if they have the coronavirus or may be exposed it it. And a March 16 order explains how the court is prioritizing certain cases, analyzing bonds of non-violent inmates to see if they can be released, excusing some people who fail to show up to court, giving probation officers more flexibility, and making other changes to help prevent the spread of the virus.
The orders have resulted in some clear changes. The courtroom is much quieter and emptier than usual. An information center is closed and about half of the clerks' windows are shuttered. And a judge overruled a prosecutor's requests Thursday morning to keep holding non-violent defendants in jail.
A sign taped to Courtroom #9 tells people to "Please practice social distancing. Sit at least two seats away from anyone else in the courtroom."
Just five defendants — four men and one woman, and all jailed — were inside the courtroom for 9 a.m. arraignment before Craig Pfeifle, presiding judge of the 7th Circuit. Arraignments usually process more defendants, and a mix of those who are jailed and out on bond.
But Pfeifle's order says the court is prioritizing cases of jailed defendants during the coronavirus outbreak.
A handful of lawyers, a few people with loved ones in jail and two journalists were easily able to maintain social distancing by spreading out among the dozens of chairs in the courtroom. But the five male defendants sat shoulder to shoulder in the first row of the jury box while the female defendant sat behind them. One of the men pulled up his handcuffed hands and used a finger to scratch his nose.
First up was the woman, who pleaded not guilty to allegedly ingesting meth, a felony that is either a misdemeanor or non-existent crime in all other states. The woman was jailed March 11 for that charge and three open cases related to grand theft and drug possession and ingestion.
Defense lawyer John Fitzgerald asked Pfeifle to let his client out without bond, noting that she'd recently completed an inpatient drug treatment. But prosecutor Arman Zeljkovic asked Pfeifle to set a bond since she had evaded appearing for her older charges since April.
There's a "fluid public health situation," Pfeifle said before granting Fitzgerald's request with the added condition that the woman wear an ankle monitor.
The woman smiled at a man in the audience who blew her a kiss.
Next up was a man who pleaded not guilty to first-degree escape by prisoner, fourth DUI and other crimes. He's been in jail since Feb. 14 on a $15,000 bond.
Defense lawyer Todd Love asked Pfeifle to let his client out of jail without bond since the Department of Corrections is planning to detain him on a parole hold. Zeljkovic said the man was "clearly a flight risk" and bond should remain the same. Pfeifle said he would only let the man out of jail without bond until the DOC confirms it will directly pick him up.
The third defendant was a man jailed March 8 for allegedly violating probation conditions from 2018 and 2016 cases. Defense lawyer Daniel Leon said his client wants to enter drug court. In the meantime, Leon said, his client should be let out without bond and participate in the 24/7 drug and alcohol program "if that's still happening" given the COVID-19 outbreak.
The drug testing center is still open and some people are still doing frequent tests, said Mark Vargo, Pennington County State's Attorney. But lawyers and judges have worked to modify people's requirements to avoid crowds at the center where people are blowing into tubes and dealing with other body fluid, he said. Some defendants are going to the center less often, some are being monitored outside of the center by using patches and bracelets, while others have been completely taken of the program.
Zeljkovic asked Pfeifle to keep the man's bond (he did not mention what the bond was) but Pfeifle agreed to release him so he could participate in the drug-testing program.
The fourth defendant was also in court for allegedly violating probation conditions on a 2019 case. His lawyer Paul Brankin asked for the man to be released without bond for the alleged violation and his new March 5 meth possession case. Zeljkovic didn't object and Pfeifle granted Brankin's request.
All of the defendants in court for alleged probation violations were jailed before Pfeifle filed his order, which says probation officers can delay sanctions during the viral outbreak. It remains to be seen if they will exercise that discretion and stop jailing as many alleged violators or requiring them to appear in court.
The last defendant was the only one in court for a violent crime. Nathan Saunders, 35, is charged with aggravated assault and two counts of aggravated child abuse for allegedly abusing a three-year-old over a two-day period in February. He's also charged with meth ingestion.
But Saunders never got the chance to enter pleas. He appeared calm throughout the hearing and stood up and began walking to the desk when his name was called. Saunders then suddenly and loudly collapsed. This reporter couldn't see him since he was hidden behind a divider, but he had loud, labored breathing and did not respond when his lawyer and a deputy spoke to him.
Pfeifle ended court and an ambulance was called. His lawyer Jamy Patterson said she couldn't comment on what happened to him.
Shea Lindsey’s trial on one count of child abuse is scheduled for July 13-15 at the Pennington County Court, records show. She faces up to 10 years in prison if convicted.
Lindsey had a clear background check when she was hired by RCAS in August 2018, according to a previous news release. She was working as a special education teacher at East Middle School when she was arrested on May 30, 2019.
It’s unclear exactly what Lindsey is accused of doing since police reports are sealed and prosecutors say they can’t talk about the case outside of court. Her defense lawyer did not immediately return a call from the Journal.
Lindsey remains out of jail on a $2,500 bond and is not allowed to contact the student.
Federal courts in South Dakota have delayed all trials and grand juries due to coronavirus.
The court can’t safely call jurors since public health experts say avoiding crowds is the best way to avoid spreading COVID-19, Roberto Lange, chief judge of the U.S. District Court in South Dakota said in a March 17 order.
Dozens of people are usually called for jury service before the final jury is selected.
“The ends of justice served by continuing all criminal jury trials outweigh the best interests of the public and any defendant's right to a speedy trial,” Lange wrote.
All trials scheduled to begin on or before April 24 are delayed until further notice. So are grand juries, a jury that meets in private to decide whether or not to file an indictment against a defendant.
Non-jury proceedings, such as hearings and trials before a judge, can proceed but individual judges can decide to delay events on a case-by-case basis. Judges are also encouraged to hold hearings by telephone or video.
No one, including federal employees and contractors, can enter any federal courthouse in South Dakota if:
• They traveled to China, South Korea, Italy or Iran in the past 14 days, or had close contact with someone who traveled to those countries in the past two weeks
• Medical providers have told them to self-quarantine
• They have fever, cough or shortness of breath
• They’ve been diagnosed with COVID-19, or come into close contact with someone who has and they haven’t yet completed a quarantine.
The order, posted online at sdd.uscourts.gov, provides instructions and contact information for individuals such as defendants and attorneys who are scheduled to appear in court but have the risk of spreading the virus.
Lange said he made his orders after consulting with agencies including the U.S. Attorneys Office, U.S. Probation, the Marshals Service and the Federal Public Defender’s Office.
South Dakota’s state courts are also taking action to help prevent the spread of the coronavirus. The 7th Circuit Court — which includes Pennington, Custer, Fall River and Oglala Lakota counties — has delayed all civil trials and criminal trials for non-jailed defendants. It’s also excusing defendants who fail to show up for misdemeanor and non-violent felony charges, giving more discretion to probation officers and prioritizing proceedings for jailed defendants.
The ACLU of South Dakota is calling on officials to “immediately release” inmates at high risk of contracting and dying from the novel coronavirus.
It’s also asking the entire criminal justice system to work together to reduce jail and prison populations since health experts recommend maintaining personal hygiene and avoiding crowded spaces to prevent the spread of COVID-19 — actions that can be hard to do in detention facilities that house hundreds of people.
“Public health experts recognize that there is a heightened risk of infection for people who are involved in the criminal legal system,” policy director Libby Skarin said in a news release.
“Being arrested and detained, incarcerated, or forced to appear in public spaces such as courts and supervision offices, or having mobility limited even while home, can drastically limit a persons’ ability to” seek medical help, practice social distancing and maintain clean hands, she wrote in a Wednesday letter sent to state and local officials.
The five-page letter has specific recommendations for how different stakeholders can improve public health by decreasing the amount of new people entering jail, releasing incarcerated people, and keeping jails and prisons safe for the workers and inmates.
The ACLU says police should “drastically limit” arrests to avoid people being detained in crowded areas, even if for a short time. The ACLU suggests issuing citations, rather than making arrests for low-level crimes.
The ACLU is calling on prosecutors to use their “immense discretion” by requesting affordable or no bond at all “in all but the very few cases where pre-trial detention” is the only safe option.
When it comes to sentencing, the ACLU urges prosecutors to only ask to send people to “cramped and often un-hygienic” jails and prisons “as a last resort.”
The ACLU also wants prosecutors to dismiss all low-level cases, and temporarily waive all fines and fees.
The ACLU asks judges to follow the same recommendations it gave to prosecutors.
The organization also asked judges to maintain a safe courtroom environment by conducting hearings by phone or video rather than through in-person appearances.
It asked judges not to waive a defendant’s right to a speedy trial, but the chief justice of the South Dakota Supreme Court has already waived the state law that says people must have their case adjudicated within 180 days.
“Sheriffs must ensure that facilities are as empty, safe and clean as possible” by cleaning facilities and making sure staff and inmates have access to free soap, hand sanitizer and tissue, the ACLU wrote. Copays should be removed for inmate health-care visits.
Jails that ban in-person visits from family and friends should allow inmates to send letters and make phone and video calls free of charge, the ACLU said. If volunteer programming ends, staff or incarcerated people should lead the programs.
The ACLU says jails should release vulnerable inmates and anyone who has a release date within 60 days.
Probation and parole
The ACLU is asking probation and parole officers to avoid in-person check-ins and instead communicate with people through voice or video calls.
The organization wants the DOC parole board to institute a presumption of release for everyone who has a parole hearing scheduled in the next two years, and to hear those cases as soon as possible. It also wants the parole board to hear cases of vulnerable prisoners, even if their parole hearing date is further away.
Gov. Kristi Noem should grant commutations to anyone whose sentence is ending within a year, anyone being held on a probation or parole violation, and to all vulnerable people whose sentences end in the next two years.
“It’s a sad time but at the same time a happy time because we found them,” said Willene Kills Enemy, mother of Robert "RJ" Kills Enemy Jr. and aunt of Vincent "Stevie" Little Dog.
“Although it wasn’t the way we wanted, they still came home” which is a “major relief for me,” she said.
“Right now my family is going through a hard time,” said Garfield Steele, uncle to the cousins. “But at the same time we’re feeling a lot of relief knowing that their bodies are back” and we can give them a proper burial.
RJ, 23, was found Friday, while Stevie, 25, was located on Monday, the family and Oglala Sioux Tribe wrote on Facebook.
Robert Ecoffey, chief of the Oglala Sioux Tribe's Department of Public Safety, said he’s confident the bodies belong to the cousins due to the clothes they were wearing, but DNA testing will confirm their identities.
The cousins were last seen the night of Dec. 27 north of Manderson after a police officer pulled up to them and a third person, Ecoffey previously told the Journal.
The group took off running and the officer briefly pursued them, Ecoffey said. The third person made it to safety but the cousins didn’t return that night, which had heavy snow, high winds and freezing temperatures.
The Oglala Lakota County Sheriff’s Office, tribal agencies, and many volunteer organizations and individuals searched for the cousins by foot, horseback, ATVS, and with the help of dogs, drones and aircraft for more than a month. The formal searches were suspended in early February to wait until warmer weather melted away unsearchable snow drifts, creeks and marshes.
Steele and Willene said they’re thankful for all the searchers; volunteers who supported the searchers with logistics, food and water; and for everyone who’s called the family since the cousins were found.
How they were found
The first body was found early afternoon on March 13 when a rancher searching for a missing animal stumbled upon the body and called 911, Oglala Lakota County Sheriff Joe Herman told the Journal.
Herman said he called a coroner and they went to the site, about four or four-and-a-half miles south of where the cousins were last seen. The body appeared to be RJ and they did a cursory search in the nearby area for Stevie.
A snow storm was coming in so the initial search for Stevie was called off until Monday, Herman said. Volunteers, including Steele, found the second body Monday afternoon “fairly close” to the first body.
The cousins would have traveled through a difficult landscape, including streams, before ending up where the bodies were found in “pretty rough terrain” and ravines, Herman said. Searchers on horseback had previously been through the area but it was impossible to completely search and clear it when there was more snow.
Willene said her heart physically hurts when she thinks about what her son and nephew went through.
She and Steele previously told the Journal that they were concerned someone hurt RJ and Stevie. They pointed to scattered clothing found in the area, a plastic window cover with blood on it, and the fact that a group of people the cousins didn’t get along with had stopped by Stevie’s house.
Ecoffey said his investigation and the bodies don’t point to any foul play, that the cousins likely died of exposure. Autopsies have already been completed and the doctor’s final report will identify an official cause and manner of death.
He said officers interviewed the people who stopped by Stevie’s house and found that the blood on the window cover wasn’t related to this case. DNA found on the jacket did match RJ, but no DNA was found on his hat. The jacket was found nearby where the cousins were last seen while the hat was found between there and where the bodies were recovered, Herman said.
Willene said the family will hold a funeral for the cousins once their bodies are returned.
RJ and Stevie both enjoyed sweat lodges and other Lakota ceremonies, and were helpful to their families and greater community by cooking food for funerals, powwows and other events, family previously told the Journal.
Stevie, who lived eight miles north of Manderson, was a quiet person who enjoyed playing basketball. He and a twin brother were raised by their grandmother after their parents died.
RJ, who lived in Manderson, had recently started a new job to support his two-year-old son, girlfriend and her parents.
Inmates at South Dakota’s minimum security prisons won’t be allowed to work at outside jobs during the COVID-19 outbreak.
The policy goes into effect Tuesday evening, Department of Corrections spokesman Michael Winder said in an email.
The DOC operates Community Work Centers in Rapid City, Pierre, Yankton and Sioux Falls, according to its website. Low-security inmates are usually allowed to work or do community service at job sites outside the work centers during the day before returning to spend the night at the prisons. Inmates in Yankton may also work in support services at the Human Services Center, the state’s mental health hospital.
As long as inmates don’t forfeit their work release status due to disciplinary action, they will be allowed to return to their work sites once the work restriction is lifted, Winder said. Inmates who are terminated by their employers during the work restriction will be allowed to apply to new jobs.
Parolees in the Community Transition Program also live at the Community Work Centers, according to the DOC website. It’s unclear if they too are barred from community work and must also stay inside prisons.
This announcement comes after DOC halted all volunteer programs and most in-person visitations on March 12. While friends and family can no longer visit inmates, lawyers can still visit their clients. Friends, family and lawyers can continue communicating via letters, phone calls and video visitations.
The DOC and its health care provider, the Department of Health, have prevention practices for contagious diseases such as COVID-19, the March 12 news release says. Specific information on how to prevent COVID-19 and recognize its symptoms are posted on signs within DOC facilities and on inmate’s tablets.
The DOC has a staffer who’s serving as the designated point of contact to communicate with the state agencies about COVID-19, Winder said in a previous email. The DOH also screens new inmates for any health issues.