Hearing Examiner Affirms Attorney General's Actions in Richard Benda Death
PIERRE, S.D – Attorney General Marty Jackley announces that the Office of Hearing Examiners has affirmed and upheld the actions of the Attorney General in the Richard Benda Death Investigation File Request.
"I have worked to inform the public of the cause and manner of the tragic death of Richard Benda, as well as our uncovering of financial misconduct. I am pleased that the Hearing Examiner has recognized both the protections provided by our laws and a family's privacy. The legislature and our courts have set forth limitations on a prosecutors ability to release certain sensitive private information, and further information on this should be disclosed by following proper procedures through the legislative audit and our courts," stated Jackley.
On October 22, 2013, state, federal and local law enforcement authorities responded to Richard Benda's death in rural Charles Mix County. On Nov 20, 2013, the Minnehaha County Forensic Pathologist issued an autopsy report indicating that in his opinion the cause of death was "shotgun wound to the abdomen" and manner of death "suicide." On Nov 21, 2013, the Attorney General released the forensic pathologist's findings, as well as a summary of the Attorney General's investigation results. The Attorney General informed the public that the investigation scene reconstruction, interviews conducted, evidence collected at the scene and forensic testing did not indicate foul play and were consistent with the independent forensic pathologist's ruling that the death was a result of a suicide. The law enforcement forensic testing included firearm functioning, ballistic testing, DNA and fingerprinting. On Nov. 27, 2013, the Charles Mix County Coroner issued his official Certificate of Death stating: "decedent secured shotgun against tree, used a stick to press trigger to shoot himself in abdomen."
Bob Mercer made several requests for the death investigation file. The Attorney General granted the request subject to three conditions designed to respect privacy and to satisfy South Dakota law: (1) All reasonable privacy related items and any Rule 6(C) grand jury materials will need to be redacted; (2) A member of Richard Benda's immediate family as defined under South Dakota law execute a written release granting permission for disclosure; and (3) The media select two representatives members to inspect the file. On December 18, 2013, Bob Mercer, having been unable to obtain an immediate family release granting permission for disclosure, filed a request for the Office of Hearing Examiners to review the Attorney General's actions and conditional granting of the request.
The Hearing Examiner has determined that "South Dakota's statutes preclude disclosure of the death investigation as developed or received by law enforcement agencies." The Hearing Examiner further determined that the In the Matter of Hughes County Action, 452 N.W.2d 128 (SD 1990), allows for a remedy with conditions as an alternative to total denial of access. The Attorney General had sought the remedy with conditions that included the permission from the immediate family. The Hearing Examiner concluded by affirming the actions of the South Dakota Attorney General.