Jury Selection in Willard Robocall Trial Favors Russ Olson's Wentworth Neighbors

A group of randomly selected Lake County citizens will troop to the courthouse tomorrow to see if they win a seat on the jury for Daniel Willard's robocall trial, which will treat them to lengthy discourses on South Dakota campaign finance law, the First Amendment, and the conflicts therebetween.

Oh, wait, did I say randomly?

As I understand the process, the state and Willard both get to strike three jurors. That means the first 18 names on the jury list are probably all the further down we need to go to see who's likely to hear the case.

This case is happening in Lake County because resigning Senator Russell Olson is claiming the harm (remember, Olson, calls it terrorism) from Willard's robocalls. Olson lives in the Wentworth ZIP, 57075, as do 892 other Lake County residents. Wentworth/57075 makes up 7.97% of Lake County's 11,200-person population (I'm using 2010 Census data). Those percentages would shift a bit if we were talking just legal adults eligible for jury duty, but let's roll with what we have.

Given those numbers, one would expect a list of 18 people randomly drawn from Lake County to include maybe one or two of Russ's Wentworth neighbors. Do some math, and you discover that there's a 95% chance that an 18-person random sample of Lake County residents should include no more than three Wentworthers.

The first 18 names on the Willard trial jury list include nine people from Wentworth.

Run this experiment one million times, and you should get that many 57075 residents in your jury pool three times.

In an infinite universe, anything can happen. In Lake County, anything includes a jury pool with a highly unlikely geographical bias toward the influential aggrieved party.

Tangentially Related Judicial Trivia: Did you know that it is a Class 2 misdemeanor to ask the sheriff or deputy sheriff to place yourself or anyone else on a jury? See SDCL 16-13-44. Lawyer friends, can you explain to me where that statute came from? And has anyone ever been prosecuted under it?

Powers Seeks Judicial Activism, Claims Journalist's Shield to Dodge Subpoena

Dan Willard goes to court in Lake County tomorrow for making Russ Olson feel bad with some critical anonymous robocalls last year. It is worth noting that the statute under which the state is prosecuting Willard no longer exists, and Olson will no longer be a Senator by the end of next month. But no matter: as our Oglala Sioux neighbors can attest, when you make the South Dakota GOP mad, they will come after you.

In response, Dan Willard is coming after SDGOP mouthpiece-blogger Pat Powers, subpoenaing him to testify at his trial this week. What Willard thinks he can learn from Powers in court is a mystery (one could say the same about what anyone thinks they can learn from Powers on his blog).

Whatever Willard's intent, Powers doesn't want to talk. In an affidavit submitted yesterday, Powers asks the judge to quash the subpoena, issue a protection order, and sanction Willard for being mean.

Perhaps of interest to readers of the South Dakota blogosphere is Powers's appeal to the journalistic shield principle. South Dakota has no shield law for journalists, but Powers angles for some legislation from the Lake County bench. Here are the relevant points from his affidavit [along with some editing we would expect of a journalist]:

7. Your affiant considers himself a journalist who competes with other journalists for news stories primarily focused on South Dakota state government, politics, and news stories. [News stories focused on... news stories.]

...9. Your affiant has cultivated relationships with confidential sources that provide me [sic: shift from third person to first person] information on the basis of their anonymity.

...20. If your affiant is forced to reveal any privileged information gathered as a result of my [sic] reporting and journalistic efforts, it will chill the relationship between myself [sic] and confidential news sources and critically impede the ability to report news.

21. Your affiant believes that Daniel Willard has subpoenaed me [sic] in this case in order to gather information protected by the Reporter's First Amendment Privilege [Pat Powers, affidavit, State of South Dakota vs. Daniel Willard, 2013.08.24].

Keep in mind, this is the same Pat Powers who has made false and defamatory hay of wanting to know the sources for my information. But hey, if the judge wants to extend journalist's shield protection to South Dakota bloggers, I'm game!