GEAR UP, prison abuse, lawyer fraud case at South Dakota Supreme Court oral arguments

KELOLAND.com Original

VERMILLION, S.D. (KELO) — Wednesday marked the final day of oral hearings in the October term of the South Dakota Supreme Court. The state’s highest court has been hearing cases all week at the University of South Dakota School of Law.

TODAY AT THE SUPREME COURT
Click on any case to jump to a summary and watch the full oral arguments from KELOLAND News.

Slota v. Imhoff & Assocs.
This is an appeal of a fraud case.

State v. Armstrong
This is an appeal of a case involving a threat against a prison mental health counselor and Gov. Dennis Daugaard.

Black Bear v MCEC
This is a case involving a KELOLAND News Investigation into misuse of the GEAR UP grant funds.

Live Blog

9 a.m.: Slota v. Imhoff & Assocs.

The first case the high court will hear on Wednesday is Slota v. Imhoff & Assocs.

This case involves Fred Slota. In Feb. 2013, he was indicted on charges of first-degree rape and sexual contact with a child under the age of 16. The victim was a seven-year-old foster child living with Slota and his wife.

His wife does an internet search and finds a California law firm, which is Imhoff and Associates, P.C.

Slota is convicted of one count of first-degree rape and one count of sexual contact with a child under the age of sixteen. Slota was sentenced to 30 years in prison.

On June 19, 2014, de Castro sent Slota a closing letter on Imhoff stationary saying that Imhoff and Associates was ending representation.

A year later, Slota files a habeas petition.

Habeas corpus is a legal action where a person can report an unlawful imprisonment.

A habeas judge found Slota’s legal representation fell short. His conviction was vacated.

After being released from Prison, Slota sued three of his four criminal defense attorneys for fraud and deceit. He also sued all four for legal malpractice.

The court found the legal malpractice case was too late, as it had passed the statute of limitations. Slota agreed with that decision.

The court also found the factual allegations do not support fraud. The court decided that his claims in fraud were just rehashing of his claims for legal malpractice.

Slota is appealing that part of his case to the South Dakota Supreme Court.

10 a.m.: State v. Armstrong

Joshua Armstrong is serving time in the South Dakota State Penitentiary for sexual contact with a person under 16. While in prison, he sent a packet of letters to the Compass Center in Sioux Falls.

The letter was addressed to PREA.

PREA stands for the federal Prison Rape Elimination Act. Under this act, prison staff couldn’t open his envelope and look at the documents before mailing. The Compass Center provides services to prisoners who wish to report sexual harassment or assault within the prison.

Inside the envelope was a three-page letter addressed to PREA, a second letter to then Gov. Dennis Daugaard and other documents.

In the first letter to PREA, he begged for help from the Compass Center. He also wrote:

Joshua Armstrong
South Dakota Sex Offender Registry

I want you to know that I am absolutely serious about what I said about [K.H.] I have got nothing to lose and everything to gain by raping and killing her or a guard. At least I will be serving time for a crime that I actually committed and to be honest I would rather die of lethal injection than sit in this cell suffering from untreated psoriasis and thoughts that I can’t seem to stop.

I know that I can not live like this much longer and fight my own conscience every day to keep me from raping [K.H.] or a guard, but if the warden and Governor are willing to sacrifice her I might as well.

What would you do? Please let me know if or when you forward the letter to Daugaard. I want to know where I stand and what I need to do in my near future. If you don’t respond by August 26, 2016 I will assume that I am on my own and might as well die embarrassing South Dakota’s government.

K.H. is a mental health therapist who worked with Armstrong at the penitentiary in Sioux Falls.

In his letter to Daugaard, Armstrong outlined in greater detail his plans to rape and murder K.H. He gave the governor options “to keep [K.H.] from being raped and murdered.” He told the governor to place thousands of dollars into various accounts and to issue him a full pardon.

Armstrong was indicted on one count of threatening to commit a sexual offense. Armstrong was alleged to have directly threatened or communicated the specific intent to commit further felony sex offenses.

Armstrong pleaded not guilty. He argued the state didn’t provide sufficient evidence that he directly threatened the mental health therapist. He asked for an acquittal. That was denied.

He also requested two jury instructions to be added at the end of the trial:

  1. To find him guilty, the jury must determine “beyond a reasonable doubt that he directly threatened or directly communicated specific intent to commit a further felony sex offense.”
  2. “The State must prove that the defendant acted with the specific design or purpose to threaten [K.H.]”

The court refused the jury instructions.

Armstrong is appealing the court’s denial of an acquittal and refusal of the jury instructions.

11 a.m.: Black Bear, et al v. Mid-Central Ed. Coop., et al.

Another KELOLAND News investigation is heading to the state’s high court on Wednesday. Here’s some background on the story:

Background on the story

Since the deadly fire on Sept. 17, 2015 in Platte, South Dakota, KELOLAND News has been investigating the GEAR UP Scandal.  We uncovered a number of issues with the $62 million in GEAR UP Grant money that came through the state since 2005.  The U.S. Department of Education awarded South Dakota the money to help prepare Native American students for college.  The State was required to match every federal dollar.  However, our investigation has shown there is no data to prove a single Native American student went to college because of GEAR UP. 

When Scott Westerhuis killed his family and himself, the Pandora’s Box was opened.  Westerhuis was business manager of Mid Central Educational Cooperative, which was contracted out by the state to distribute the grant money.  Hours before Westerhuis shot his four children, ranging in age from nine to 16, along with his wife Nicole, the state let Mid Central know there were problems and it was cancelling its contract with the cooperative. 

South Dakota Attorney General Marty Jackley says after killing his family, Scott Westerhuis then set his home on fire and turned the gun on himself.  Jackley ruled that Westerhuis acted alone.

Our investigation followed the money and found that there were a number of people involved with conflicts of interest. We also discovered that the state failed to deliver on promises to students and the federal government when it came to GEAR UP. 

The case

This case is all about the students who were meant to benefit from GEAR UP. Alyssa Black Bear and Kelsey Walking Eagle-Espinosa sued Mid-Central Educational Cooperative and other defendants on behalf of the students who were supposed to benefit from the GEAR UP funds.

The court had dismissed the lawsuit for several factors and now Black Bear and Walking Eagle-Espinosa are appealing.

What the court needs to decide

Both sides of this case have asked for the court to figure out a few issues. Black Bear and Walking Eagle-Espinosa want the following issue resolved:

  1. Whether the circuit court erred in ruling that their claims are preempted by federal law.

The defendants are raising the following issues for the Supreme Court to figure out:

  1. Whether the circuit court erred in ruling that Black Bear and Walking Eagle-Espinosa have standing to bring their claims.
  2. Whether the circuit court erred in concluding that Black Bear and Walking Eagle-Espinosa effectively complied with notice requirements.
  3. Whether the circuit court erred in finding a genuine issue of material fact regarding whether Black Bear and Walking Eagle-Espinosa were intended third-party beneficiaries of the agreement between SDDOE and MCEC.
  4. Whether the circuit court erred in finding a genuine issue of material fact regarding whether MCEC or its executive director can be held vicariously liable for the torts of Scott and Nicole Westerhuis.
  5. Whether the circuit court erred in finding a genuine issue of material fact regarding whether GEAR UP funds were missing or misappropriated.
  6. Whether the circuit court erred in certifying the lawsuit as a class action.

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