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August 27, 2021

Lots of interesting sentencing issues as South Dakota's Attorney General avoids any incarceration after killing pedestrian

This AP piece, headlined "An Attorney General Won't Serve Any Jail Time For A Crash That Killed A Pedestrian," reports on the details of a notable resolution to a high-profile criminal case involving the top legal official in the Mount Rushmore State. Here are some details:

South Dakota Attorney General Jason Ravnsborg pleaded no contest Thursday to a pair of misdemeanor traffic charges over a crash last year that killed a pedestrian, avoiding jail time despite bitter complaints from the victim's family that he was being too lightly punished for actions they called "inexcusable."

Circuit Judge John Brown had little leeway to order jail time.  Instead, he fined the state's top law enforcement official $500 for each count plus court costs of $3,742.  Brown also ordered the Republican to "do a significant public service event" in each of the next five years near the date of Joseph Boever's death — granting a request from the Boever family.  But he put that on hold pending a final ruling after Ravnsborg's attorney objected that it was not allowed by statute.

Ravnsborg said in a statement after the hearing that he plans to remain in office.  The plea capped the criminal portion of a case that led Gov. Kristi Noem — a fellow Republican — and law enforcement groups around the state to call for his resignation.  But he still faces a likely lawsuit from Boever's widow and a potential impeachment attempt.

Ravnsborg's statement accused "partisan opportunists" of exploiting the situation and said they had "manufactured rumors, conspiracy theories and made statements in direct contradiction to the evidence all sides agreed upon."  Noem, in a statement afterward, pushed the Legislature to consider impeachment and said she ordered the House speaker be given a copy of the investigative file. Impeachment proceedings halted in February after the judge barred state officials from divulging details of the investigation. Lawmakers indicated then that they might resume after the criminal case ended.

The attorney general was driving home to Pierre from a political fundraiser on Sept. 12 when he struck Boever, who was walking on the side of a highway. In a 911 call after the crash, Ravnsborg was initially unsure about what he hit and then told a dispatcher it might have been a deer. He said he didn't realize he struck a man until he returned to the crash scene the next day and discovered the body of Boever, 55.

Ravnsborg pleaded no contest to making an illegal lane change and using a phone while driving, which each carried a maximum sentence of up to 30 days in jail and a $500 fine. Prosecutors dropped a careless driving charge.

Ravnsborg didn't attend the hearing — he didn't have to and was represented by his attorney, Tim Rensch. That angered Boever's family. "Why, after having to wait nearly a year, do we not have the chance to face him?" Boever's sister, Jane Boever, asked the court. She said "his cowardly behavior leaves us frustrated."

She said her brother was "left behind carelessly" the night he died. She accused Ravnsborg of running down her brother and then using his position and resources to string the case along. She said he has shown no remorse, and only "arrogance toward the law." Jane Boever called the punishment "a slap on the wrist."

"Our brother lay in the ditch for 12 hours," she said. "This is inexcusable." Boever's widow, Jennifer Boever, said Ravnsborg's "actions are incomprehensible and ... cannot be forgiven."

Rensch pushed back hard on the family's criticism, calling the attorney general an "honorable man." Rensch said Ravsnborg had been consistent from the beginning that he simply did not see Boever. And he noted that the case was "not a homicide case, and it's not a manslaughter case."

"Accidents happen, people die. It should not happen. No one wants anybody to die," he said. Rensch told reporters after the hearing that Ravnsborg had cooperated fully with investigators by sitting down for two interviews and allowing his phones to be analyzed. "Basically just take your shirt off and say, 'Here I am, bring it on.' I'll answer anything you've got, and that's what this guy did," Rensch said.

Beadle County State's Attorney Michael Moore, one of the prosecutors, agreed that the attorney general had been cooperative. He was also satisfied with Ravnsborg's punishment and the crash investigation. "Because of who it was and the high profile nature of the case, the investigation was a lot more thorough," he said.

After a months-long probe led to prosecutors charging Ravnsborg with the three misdemeanors in February, Noem put maximum pressure on Ravnsborg to resign, releasing videos of investigators questioning him. They revealed gruesome details, including that detectives believed Boever's body had collided with Ravnsborg's windshield with such force that part of his eyeglasses were deposited in the backseat of Ravnsborg's car.

Prosecutors said Ravnsborg was on his phone roughly one minute before the crash, but phone records showed it was locked at the moment of impact. Ravnsborg told investigators that the last thing he remembered before impact was turning off the radio and looking down at the speedometer. A toxicology test taken roughly 15 hours after the crash showed no alcohol in Ravnsborg's system, and people who attended the fundraiser said he was not seen drinking alcohol.

Ravnsborg adamantly denied doing anything wrong. He insisted he had no idea he hit a man until returning to the crash site and that he is worthy of remaining the state's top law enforcement officer. "Joe's death weighs heavily on me and always will," Ravnsborg said in his statement. "I've often wondered why the accident occurred and all the things that had to have happened to make our lives intersect."

Ravnsborg's insistence on remaining in office has opened a divide among Republicans, with him retaining support among some GOP circles. The attorney general has been spotted working booths for local Republican groups at county fairs in recent weeks. But popular predecessor Marty Jackley is already running for his old job and has collected the support of most of the state's county prosecutors. Political parties will select candidates for attorney general at statewide conventions next year....

Boever's family said they hope Ravnsborg is driven from office one way or another. "It is not too late for the state Legislature to resume impeachment proceedings," Jane Boever said. "And if they fail us, then it's left to the voters of South Dakota to remove him from the ballot box."

The sentencing nerd in me is struck by the fact that Judge Brown, in response to a request from the victim's family, "ordered the Republican to 'do a significant public service event' in each of the next five years near the date of Joseph Boever's death." I am not sure what that exactly means, but apparently the SD AG's lawyer thinks it is "not allowed by statute."  I also wonder if the possible, but not certain, prospect of Ravnsborg losing his job may have influenced the prosecutors to accept this deal.  (And, the Criminal Law professor in me also thinks this might be a good hypo when I teach omission liability next week.)

Because the exact facts are a bit opaque (e.g., was the victim killed instantly and why and how was he walking on a "highway"), I am still not sure what to make of this sentencing outcome.  But I would certainly be eager other perspectives.

August 27, 2021 at 01:11 PM | Permalink


This appears to have gone a bit viral.

I saw people like Malcolm Nance, who is usually concerned with military matters and such, retweet comments criticizing it. I saw a criminal justice advocate, who strongly opposed any criminal charges for the woman who called the police on a black bird watcher without apparent grounds, strongly criticize coverage.

I also saw various people misstate facts. Looking, he did not leave the scene. He called 911 and waited for the police & they did a quick search of the area. He came back the next day, dropping off a car he was lent (his was totaled), so that might have confused people.

It is assumed by some he was drinking. No evidence of this from what I can tell. They didn't do a breath analyzer to the next day. But, you would need cause to do one at the scene. I guess it would have been a good idea to ask him voluntarily, if they had the means to do so.

The prosecutors said that there wasn't enough evidence of reckless driving. I wouldn't be surprised if that was a valid call and would depend on the nuances of state law.

What bothers many is that it seems that he lied to the police when he said that he didn't know he hit a person. The police felt he lied to them. He was not charged for that. The coverage makes it unclear why this was so, including if there was a concern there was not enough to prove beyond a reasonable doubt.

Him being in a the attorney general stands out. But, if it was actually an accident, I have seen reported multiple average individuals who were not punished criminally (or received similar treatment).

There has also been political pressure, including from Gov. Noem (R), for him to resign or to impeach him. Given the difference in proof and the different purposes of the procedure (see also Cuomo), that probably is much more the way to go.

He probably would not have received as much attention if he actually resigned. Without more, including more info on comparable state practice, I am not ready to judge this to be an unjust result. If he really did lie to the police, that should have been addressed, especially given the importance of his role.

Posted by: Joe | Aug 27, 2021 1:40:45 PM

I just think given his position of significant authority in the state, it’s hard to imagine that he didn’t receive preferential treatment both from the police and the prosecution, even if it all happened subconsciously.

As one example, not asking him about drinking. I recall a police encounter for a minor moving violation where that was one of the first things asked. (Spoiler alert: I hadn’t imbibed anything stronger than coffee in days.) And that didn’t even involve property damage, let alone possible human injury or death.

Or back up to just his initial story about the deer. It seems like the cops were super credulous of that and didn’t want or think to challenge him, at least until the body was found.

Posted by: kotodama | Aug 27, 2021 2:33:51 PM

I'm not sure if the officer did not ask him about drinking.

They did investigate and people at the fundraiser said he was not drinking. He was eventually asked though a tox screen done so much later seems pointless to me.

It's very possible he got some special treatment though outside of the criminal justice aspect, there was also pressure from the governor on down to get him to resign.

I think the basic anger here is that he seems not have had any consequences. If he actually lost his AG position, I think that would have helped relieve some of the anger at least.

Anyway, one important thing here was a matter of form. The victim's family is not surprisingly quite upset & believes among other things he did not treat the whole thing with the right amount of respect. There a limit there but the special act of community service the judge provided was meant to address that.

Even if this was not authorized by state law -- I have no idea -- it would have behooved him to work out something where he agreed to do something of that nature. As a basic matter of humanity as well as a symbolic act for a public figure in this situation, it would have been a good call.

I think this is a lesson for criminal justice in general.

Posted by: Joe | Aug 27, 2021 3:04:48 PM

The fact that they belatedly did a tox screen—when, as you point out, it was also meaningless—sure seems like an implicit concession to me that it was overlooked earlier.

As for the fundraiser, well, people can lie, right. Especially your best buds at a political fundraiser might very well want to cover for you. That's sort of why you have chemical tests that can't be lied to.

It will be interesting to see what comes out of the civil case, if anything.

Also, I am curious as to whether he is going to face SD bar disciplinary proceedings.

Posted by: kotodama | Aug 27, 2021 5:12:21 PM

Does a SD court have no power to require the defendant's appearance at sentencing? Not ordering appearance, and not voluntarily appearing, feels tone-deaf.

Posted by: Jason | Aug 29, 2021 10:30:14 AM

Not sure on South Dakota law, but using my state rules as a go-by: In my state, the rules permit a defendant to waive presence at sentencing on misdemeanors. Courts usually allow that, but they could insist on an appearance.

In my state, on a misdemeanor, you can suspend part of a fine and put the defendant on probation, but only for a maximum of two years. So the court could require community service to be performed on or near the anniversary of the death but only for the first two years.

Fatal accidents -- with no proof of intoxication -- are always a close call between involuntary manslaughter and careless and imprudent driving.

Posted by: tmm | Aug 30, 2021 10:20:52 AM

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