The South Dakota Supreme Court decided last Wednesday to vacate the death sentence of convicted murderer Briley Piper in the vicious 2000 slaying of Chester Allan Poage.

For those who may not be familiar with the case, or may have forgotten details, this is a summary of the incident from an editorial I wrote in 2006 leading up to the originally scheduled date for the execution of Piper's fellow murderer Elijah Page:

According to court reports, Page and his fellow murderers (Darrell Hoadley and Briley Piper) decided in March of 2000 to kidnap and murder their "friend" Chester Allan Poage so they could steal his possessions.

At the house where the three murderers had been living, they pulled a gun on Poage and forced him to get on the floor where Piper kicked him unconscious. They tied Poage to a chair and Page forced him to drink a mixture of "crushed pills, beer and hydrochloric acid." Court documents say Poage begged for an explanation of why his friends were doing this to him, but Page hit him in the face and told him to "shut up." While the murderers discussed how they might kill Poage, Poage pleaded for his life and offered to give him everything he owned if they would let him live.

After getting Poage to divulge the PIN of his ATM card, they put the victim in a car and drove him to Higgins Gulch. They forced Poage out of the vehicle and into 12-inch deep snow where he was made to take off all his clothes except for a tank-top style undershirt, shoes and socks; the temperature was about 25 degrees F.

The three murderers then held Poage down and tried to cover him up with snow, then took him to an icy creek about 50 feet from the road. Court documents say Page and Piper admit to kicking Poage "numerous times" in the head and other parts of his body.

Poage attempted to escape at one point, but this only brought recapture and more beating.

They made Poage lay in the icy creek water "for a lengthy period of time." Poage begged to be allowed to get in the warm vehicle, saying he would rather bleed to death in the warmth of the vehicle than to freeze to death in the creek. Piper initially agreed to let him in the vehicle if he would wash off the blood from his body in the creek, but after Poage did this, Piper reneged and they continued beating him.

After more beating, they put Poage back in the stream where they tried to drown him. Piper stood on the victim's neck, then stabbed him twice or more in the head and neck. They apparently also beat him with stones.

Poage was still moving even after this brutal punishment, so they dropped large rocks on the victim's head which is believed to have finally killed him. The court documents state that Page admitted dropping these rocks on his "friend's" head. About three hours after they started beating Poage at the creek, Page and the others left Poage for dead in the water.

Page and the others then stole some of Poage's property and used his ATM card to get some cash.  Over a month later, Poage's remains were found in that creek.

It didn't take long for the perpetrators to be identified and apprehended.  Piper initially plead not guilty, but later changed his plea to guilty.  Hoadley's girlfriend also stated that Piper confessed the murder to her (before his arrest) in great detail, laughing and stating that he  "thought it was just like a really cool neat thing.”

During the investigation, Page described the murder to police in painstaking detail, even visiting the scene of the murder with police and going over every aspect of the murder.

Piper and Elijah Page both plead guilty and waived their right to a trial by jury, with both sentenced to death by Circuit Judge Warren G. Johnson of Deadwood.  Hoadley plead not guilty, was tried by jury and sentenced to death.

Page made headlines in 2006 and 2007 as he asked to accelerate his execution and get it over with, and was eventually executed in 2007.

Unlike Page, Piper has always wanted to live (something he denied to Chester Allan Poage) and has fought for the "better deal" that Hoadley got.  On Wednesday, the South Dakota Supreme Court gave him a shot at it.

From the Argus Leader:

Piper's lawyers, Steve Miller and Steven Binger of Sioux Falls, argued that the judge and the defendant's public defenders botched the explanation of unanimity.

Death sentences from a jury require unanimity, which means that if even one juror disagrees with the capital punishment sentence, the convicted person automatically receives a life sentence.

The judge in the case told Piper that "all 12 jurors must agree on a penalty" but did not specify that any disagreement would save his life.

The distinction is slight but important in a life-or-death case, Binger said.

The conversation between the judge, Piper and Piper's counsel is quoted in the Supreme Court opinion:

Judge: With respect to Count IA, which is a Class A felony, you not only have a jury trial right as to the charge itself as to the issue of guilt or innocence, but you have the right to a jury to determine whether or not the State has proved one or more aggravating circumstances and then for that jury to decide whether the penalty should be life or death. The verdict of the jury would have to be unanimous. And even if the jury found that one or more aggravating circumstances existed, I think it is still within their province to sentence you to life imprisonment.

Is that your understanding, [Defense Counsel]?

Piper’s counsel: Correct.

Judge: [Counsel for the State]?

State’s counsel: Yes.

Judge: Do you understand that, Mr. Piper?

Piper: I didn’t understand the last part.

(Emphasis added). After Piper expressed that he did not understand jury sentencing, the judge advised:

Judge: Okay. As I understand it, based upon the statutes and the cases so far decided by the Supreme Court of this state concerning the death penalty, that the state of the law is that if you were convicted of either Count I, premeditated murder, or Count IA, felony murder, which is the charge that you intend to plead guilty to today, then we would have a sentencing hearing.

You are proposing that I hold the sentencing hearing rather than the jury hold the sentencing hearing. What you need to understand is that if you have a jury instead of a judge, all 12 jurors must agree on the penalty; and even if the jury found that the State had proved one or more aggravating circumstances - -

Piper’s counsel: Those are circumstances with which the jury would be justified in giving you the death penalty if they saw necessary. Aggravating circumstances is simply something - - The jury must find that it exists in order to impose the sentence of death. If they don’t find that that exists, they can’t. And if they do find that it exists, they don’t have to, but they can.

Judge: Do you understand that, Mr. Piper?

Piper: Yes.

Judge: Is there anything you want me to explain in more detail about that?

Piper: No.

Judge: If I do the sentencing instead of the jury, I still have the same situation. I must find one or more aggravating circumstances to be proved by the evidence, and even if I found those to be proved by the evidence, I could sentence you to life imprisonment rather than to death by lethal injection. Do you understand that?

Piper: Yes.

Judge: What is significant about what you’re doing here today is that if you waive your right to have the jury do the sentencing, you are trading 12 lay people for one judge to make that call. Do you understand that?

Piper: Yes.

(Emphasis added). The judge did not clarify further.

I just don't see how the judge could have made it any more clear than he did.

And Piper indicated that he understood and needed no further clarification.

A death penalty expert tells me that the crux of the issues lies in the expectation that the judge make it crystal clear that only one juror voting against the death penalty will mean he gets a life sentence instead of a death sentence; no impression however slight or unintentional must be given that a life sentence would also require a unanimous decision of the jury.  

I understand that common sense and legal requirements are frequently strangers to one another in our modern justice system, but how pathetically low must we dumb-down our judicial system to ensure that even the worst dullard understands?  The death peanalty is obviously what the accused wants to avoid most, and it was made quite clear (to any reasonable person) that this required a unanimous decision by the jury.

In actuality, I don't think we need to dumb it down at all.  I think Piper understood quite well the dynamics of the situation and what was at stake.

I can't get inside Piper's head, but here's what I think happened.  Piper realized he was in South Dakota, a conservative state where most people still believe in justice and believe that people should be properly punished for their crimes. He knew that the brutal, extreme nature of his crime would shock the conscience of most people.  It also doesn't take a genius to take a look at our judicial system in general and realize that a large number of judges are liberal, pathetically weak in moral fortitude,  and more often than not render slap-on-the-wrist judgments.  In short: Piper evaluated his odds and figured he had a better chance at escaping the death penalty from a judge.

There was just one problem with his analysis: he got a judge that had some idea of what justice really means and wasn't afraid to apply it.  Piper rolled the dice...and came up snake eyes.

Piper chose Door Number One but didn't like what was behind it.  Now he wants a chance at Door Number Two.  Understandable, since he surely doesn't want to face the same outcome as he inflicted on his victim, but society is under no obligation to indulge a brutal murderer.

The South Dakota Supreme Court opinion mentions that the U.S. Supreme Court has found in the past that "under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established by a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California, 549 US 270, 281, 127 SCt 856, 863-64, 166 LEd2d 856 (2007).

If that's the case, then there isn't much that can be done to get around that requirement at this stage.  This would seem to be a much more firm and logical basis upon which to grant Piper's request for a new sentencing hearing by jury.

We can only hope that the members of that jury will have the firm sense of right and wrong, and the moral fortitude to do the right thing, that Judge Johnson showed in sentencing Piper.

South Dakota state representative Tim Rounds (R-Pierre) says he wants to lower the state's drinking age to 18, provided the drinking occurs in controlled settings

According to an article from KOTA, such "controlled settings" would include clubs or in the presence of adults. Another stipulation Rounds cited would be that the alcohol not include hard liquor.

Rounds is quoted in the Sioux Falls Argus Leader:

"Young adults are drinking. That's a fact. They're binge drinking. Go to any college community. It goes on. There's no control. It's not a safe environment," he said. With a law change, "you're not going to stop house parties and drinking and driving, but you will lessen the numbers that are doing that."

A primary reason cited by Rounds is highway safety, ostensibly on the logic that somehow allowing legal drinking for 18-year olds would somehow keep more drunk 18 year olds off the road.

As a former law enforcement official and as a former drinker, that just makes no sense whatsoever to me.

It is true that underage people are currently drinking.  But legalizing it will do little if anything to reduce it or make the highways safer. When you legalize a risky behavior, you usually get more of that risky behavior...and more of the unfortunate consequences that come with said risky behavior.

Plenty of people 21 and over are drinking and driving; why would be expect a less mature 18 year old to do better than a 21 year old?  We can hope that a person might mature in those extra three years (they often don't), but we're asking for more trouble by lowering the drinking age.

Having spent 10 years in the military right out of high school, I also understand the argument that if a person is old enough to fight and die for their country, they should be old enough to drink.  Because there is compelling logic to that statement, I could grudgingly go along with an exception for 18-20 year old military members, but only grudgingly.

I started drinking when I went overseas at  19, and frankly that was too young.  I don't know if I would have handled it more responsibly at 21, but I know I didn't do a good job of handling it at 19.   Fortunately, as a law enforcement official, I couldn't lower myself to the hypocrisy of drinking and driving, then arresting people for it, so I always made sure I had a ride or was parked for the night for my drinking.  But I can attest from the behavior of many drinking friends, that restraint is not common among drinkers.

The issue involves not only drunk driving, but other behavior as well.  Excessive drinking brings bar fights, assaults, drunk and disorderly behavior, and domestic disturbances.  A large number of the domestic violence cases I responded to involved alcohol use.  Alcohol impairs judgment even after only a few beers, and anger that might be restrained under normal circumstances can get out of hand quickly when under the influence of an intoxicant.  I really don't think we want to see more women and children (and men, for that matter) assaulted by drunken 18-20 year olds in the home.

My friend and former state senator Bill Napoli supported lowering the drinking age when he was in the legislature, and still does.  I like Bill, I respect him greatly and think he was an outstanding legislator, but I disagree with him on this one.

I support freedom wherever possible like any good conservative or Republican should.  But when the issue involves a moral component like drinking to excess (which doesn't take much), involves public safety both in the home and on the streets, and can ruin a person in so many ways, I consider this one of these few areas where it is reasonable to curtail some freedom until a person is (hopefully) a little older and a little wiser.

 Thanks to the good Tim Fountain at Northern Plains Anglicans I’ve learned that Senator John Thune (R-SD) has launched the Healthcare Freedom blog to discuss the planned government takeover of healthcare.

As Senator Thune said in his press release announcing the blog:

“Republicans and Democrats alike know we need to reform our nation’s healthcare system. I support common sense reform that will lower costs for families, small businesses and senior citizens. A government-run healthcare system, like the one Democrats are aiming for, would cause patients to lose their coverage and diminish the availability and choices of healthcare plans. We must achieve real reform that finds savings rather than one that balloons the federal budget deficit,” said Senator Thune.

“Today I’ve launched a blog that outlines some of the principles I could support in a reform measure. The blog will serve as a forum for South Dakotans and citizens around the country to post their views and will be continually updated with the latest news and developments in the Congressional debate over how to reform healthcare,” Thune continued.

It’s great to see one of the leading Republican senators take the bull by the horns and engage this unconstitutional assault on the free market and the American taxpayer.

As Thune points out, a lot of work, a lot of “reform” is needed on our current health care system, but moving it even more into the shadow of government is exactly the wrong direction to take it.  The vast majority of the problems faced in our current system were caused by government meddling. We need to move health care back to the free market model that made America the most prosperous and economically powerful nation on earth.

I have a feeling that over the upcoming August recess, a lot of congressional bulls are going to be taken by the horn

According to KELO and other sources, the South Dakota Supreme Court today overturned a previous decision by Circuit Judge Lori Wilbur that South Dakota school districts did not have standing to join a lawsuit to milk the taxpayers for more education funding.

Over the past couple of years, several school districts across the state have, using taxpayer money, joined a lawsuit against the state of South Dakota because they feel the legislature isn’t providing as much money as they want for education.

When Judge Wilbur shot them down last year, some of the educrats turned to private sources of funding like walk-a-thons and brat-feeds to raise money (something they should be been doing all along, if they felt this strongly about it), but kept up their efforts to send the taxpayers the bill for their greed.

Now, according to yesterday’s decision from the South Dakota Supreme Court, while the outcome of the lawsuit still remains to be settled, the supreme judges have at least ruled that the taxpayers can be billed for the efforts of government employees to tax them even more.

The decision outlines how South Dakota schools are funded:

The South Dakota Constitution specifies four sources of funding that go to the local school districts for public education. The first source is the interest from a permanent trust fund, whose principal derives from the sale of public school lands acquired from the United States government, property escheated to the State, gifts and donations, and other property “acquired for public schools.”

The second source:

The Constitution establishes a second education funding source from “[t]he proceeds of all fines collected from violations of state laws[.]” SD Const art VIII, §3. The county treasurers collect the fines and distribute them “among and between all of the several public schools incorporated in such county in proportion to the number of children in each, of school age, as may be fixed by law.”

Is it being alleged that these funds are not being allocated to the state properly? Not according to Justice Zinter:

The principal allegation in the underlying school funding litigation is that the Legislature is failing to perform its duty of appropriating sufficient general funds, derived from taxation, to maintain a thorough and efficient system of schools as required by article VIII, section 15 of the South Dakota Constitution. The plaintiffs in the underlying litigation do not allege any improper use of the two educational trust funds that were created by article VIII, sections 2 and 3 and are relied upon by the majority.

The last two sources of education funding:

The Constitution also provides two other funding sources for public education – general taxation and local taxation. Article VIII, section 15 requires the legislature to “make such provision by general taxation and by authorizing the school corporations to levy such additional taxes as with the income from the permanent school fund shall secure a thorough and efficient system of common schools throughout the state.”

This is all fine and wonderful, but I know of no provision in the state constitution or statute which requires a specific taxation level or rate to be allocated to public education. The state of South Dakota is only required to provide education funding “adequate to allow students to be responsible and intelligent citizens.” No dollar amount whatsoever is set and no performance.

The latest information available from the American Legislative Exchange Council in their 2008 “Report Card on American Education” finds South Dakota ranked 5th in the nation for academic achievement and 39th in per-pupil spending ($7,790). Washington D.C. is ranked 51st in academic achievement even though they are #3 in per-pupil spending at a whopping $13,848 per student. South Dakota also beats the national average of a 70.2% graduation rate at 79.6%. Obviously spending has very little to do with achieving funding “adequate to allow students to be responsible and intelligent citizens.”

If the state is required to distribute all money from the sale of school lands, and all money from fines…and this is not being done, then there is standing for the people (not government institutions) to file a grievance against their government for not adhering to the law and thus not providing the service to the people which is proscribed by law.

I’ll say it again: the people would have standing here, not government agencies which already have the taxpayer on the hook for cash. It is the taxpayer who is theoretically being wronged by “inadequate” funding, not the schools or school officials–they are government entities.

But that is not even at issue. The first two methods of education funding are not being contested, and there is no specific amount set in the South Dakota Constitution or state law. Meanwhile, the evidence shows there is no deficiency in academic achievement for our state.

It is insane to allow government to sue government using taxpayer money to put the taxpayers on the hook for still more money. Yet that is what these mental giants in the state Supreme Court have ruled:

The school districts’ interest in discharging their constitutional duty is not simply based on their status as representatives of constituent students and taxpayers. In this constitutional challenge, the school districts are not mere creatures of statute. Instead, they are creations of the Constitution via Article VIII. Because of the constitutional provisions and the vital position school districts hold as beneficiaries and recipients of public K-12 education funding, we recognize that school districts have standing to challenge the constitutionality of K-12 public school funding in the limited context of a declaratory judgment action.

We are a nation of government of the people, by the people and for the people. We are not a nation under the authority of a government, but a nation where government is under the authority of the people. And in our republican form of government, the people determine what government will and will not do through their vote for members of the legislative branch.

Even the Supreme Court members recognize that any standing the school districts have is, at best,limited, but their justification for even limited standing for the school districts–as opposed to the people, the taxpayers–is dangerously “creative” and sets a dangerous precedent.

Chief Justice Gilbertson concurs with Justice Sabers, Konenkamp and Zinter, but states and admits in his provisional concurrence that the school districts are not seeking a specific dollar-amount appropriation, the school districts concede that the court has no “super school board” authority to run the South Dakota education system, and that even if a declaratory judgment is made in their favor, the legislature cannot be forced to appropriate a specific dollar amount to the school system.

So essentially the school districts want to waste taxpayer money in both filing suit against the state (using taxpayer funds) and forcing the state to defend itself (again using taxpayer funds)…when at best even a favorable outcome will do absolutely nothing to garner them one more penny in education funding!

How stupid is that?! How wasteful of taxpayer money is that?!

If the school districts are “creatures of the Constitution” as this ruling says, and in the implied sense gives that creature the power to force it’s creator (the people) to cough up cash on demand, then we have allowed our state constitution to create a monster.

This ruling essentially gives rights to Frankenstein’s monster. Because Dr. Frankenstein created his monster, his monster has legal standing to demand from his creator a salary commensurate with what the monster thinks is fair. And since in this case Dr. Frankenstein works for the taxpayers, the monster has legal standing to extort the taxpayers for cash.

What an asinine line of reasoning!

With this kind of muddled, convoluted thinking passing itself of as “legal wisdom,” the people have for all intents and purposes become servants of their own creations!

The South Dakota Supreme Court has basically ruled that the taxpayers, the people, are subjects of government. The people have been made into serfs to serve the dictates of government entities.

Any time the taxpayers–through their elected representatives–authorize the creation of a new government department, office or function, they have made themselves servant to a new government entity. The people do not have control over the flow of their own money to that organization; that organization has been empowered by the lords in black robes to dictate terms to the people.

This might be one to remember during the next judicial retention election.

The folks at the Sanford Underground Laboratory at Homestake held Neutrino Day in Lead, South Dakota last Saturday, and my family and I joined them for this fun and interesting time. 

Neutrino Day is a presentation in the Black Hills town of Lead (pronounced "LEED"), where the old Homestake Gold Mine was bringing up gold until about 2002.

At the time it was the deepest gold mine in the country at well over a mile deep. When it was no longer cost effective to dig up the gold, the mining operation was shut down.

But scientists saw opportunities in the old mine. They thought that if they set up a laboratory deep underground they could study things like neutrinos in ways they never could on the surface or even at more shallow depths.

So new life has been breathed into the mine with the creation of the Deep Underground Science and Engineering Laboratory (DUSEL).

Workers have been pumping out water that has filled a lot of the mine since it was shut down in 2002, but they now have the water out to a depth of around 5,000 feet. According to the Rapid City Journal, the lab is now getting ready to start experiments:

The first experiment to be installed will be the Large Underground Xenon (LUX) dark matter detector. That project will be conducted by a collaboration of universities led by Brown and Case Western Reserve universities.

The second experiment, into a phenomenon called neutrinoless double beta decay, will be conducted by a collaboration that includes 19 institutions from four countries.

Both sets of experiments, like the Davis research, require labs deep underground to protect them from cosmic radiation.

Dr. Jose Alonso, director of the Sanford Lab, said the LUX work underground won’t start for another 12 months, but other LUX research will begin soon at the lab’s above-ground facilities.

Neutrino Day was established to give children and other interested people a look at what they’re doing at the DUSEL and to spur their interest in science.

On Neutrino Day we saw a presentation about outer space, a neutrino experiment being conducted at the South Pole, and took a tour of the hoist room where massive cables are used to lift elevators up and down the long mine shaft.  Children got to create models of atomic elements with colored marshmallows and toothpicks, look at a real Geiger counter and test it against low-grade radioactive material, and do other science experiments. 

As the deep underground lab experiments start coming online, the Black Hills of South Dakota will become home to some very advanced science.

Upwards of 1,000 people came out Saturday to Citizens for Liberty's Independence Day Tea Party in Rapid City.

You never know what you’re going to get for attendance at such an event when it's held on a holiday. Many people, like most of my family, were traveling out of town and didn't get back until late Saturday afternoon.  There were also something like 20,000 people up late the night before at Mount Rushmore for the fireworks, and around the time the Tea Party rally started in Memorial Park, it looked as if it might rain any moment.  Later that day, attendance was also down considerably at the Black Hills Heritage Festival, and at the Rapid City fireworks show that night, I had never seen so few people in attendance.

But plenty of freedom-loving people came out for both the sign-waving and the program.  Like the Tax Day Tea Party, people lined up along 5th Street by Memorial Park and down Omaha Street.  Despite fewer numbers at the event and of cars driving by on the road, it seemed there was even more energy and enthusiasm from both the sign-wavers and from the people driving by, waving and honking their horns.

Citizens for Liberty held a great program at the bandshell.  It started with singing some patriotic songs, then the crowd was introduced to several veterans who had been wounded in combat in service to our country.  Barb Lindberg spoke on the cap and trade global warming tax (people weren’t thrilled about that), and Don Van Etten spoke  about government health care (people didn’t like that, either).

T-shirts, bumper stickers, patriotic books and more were sold out at the table set up by Citizens for Liberty.  People donated generously to the group's efforts to educate and inform about limited government, and their plans to recruit and support limited government candidates.  Also, hundreds signed up for Citizens for Liberty's newsletter, to be alerted to big-government legislation, and to be notified of volunteer opportunities when help is needed.

It was wonderful to be around so many Americans who love their country deeply, respect their Constitution profoundly, and are committed to saving our great nation from the spending and socialist abyss.  These patriots sacrificed from family time to come on their holiday and take a stand for their country and their freedom.  

They also wanted to send a message to the socialists in Washington: America is our country, and we will not allow you to destroy it or our freedoms.

It is not in the nature of conservatives and average Americans to demonstrate and protest.  Most Americans just want to be left alone in the freedom to take care of their families and live as they choose under God.  In other words, they just want to be left alone.

But the threat to that freedom and way of life has become so large and unmistakable from our own government that most patriotic Americans realize they must take a stand before we lose all that we hold dear.

If every patriotic American will take a stand as these courageous people did, we can save our country and Constitution, and drive these socialist usurpers from office.

Let freedom ring!