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Eric complains to the So. Dak. State Bar, and actually gets results.

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You have probably read the cover letter Eric Sage sent to the State Bar. Accompanying that letter was a complaint narrative, which appears immediately below.

Below that is Gina Nelson's first response to Eric Sage's complaint. "I have been entrusted with an awesome responsibility to protect our community, our county, and the State of South Dakota from criminal activity and seek justice."

Below that is Eric Sage's response to Ms. Nelson's defense of the indefensible. "I have to smile as I read Ms. Nelson’s exhortations that I adhere to the rule of confidentiality. I can certainly understand why she wouldn’t want folks to know about this proceeding."

Below that is one more response from Ms. Nelson. "We do it out of a normal course of business..."

And, finally, "The Board has imposed disciplinary action..."

kkk

 

BASIC COMPLAINT of Eric Sage, Plaintiff

On August 7, 2007, South Dakota Highway Patrolman Dave Trautman charged me with a violation of SDCL 22-42A-3, “possession of paraphernalia” even though its owner admitted possession of the “paraphernalia,” and in spite of the obvious fact that I was riding a motorcycle and she was in a pickup with the purse containing the “paraphernalia.”

On Aug. 23, 2007, at arraignment, I asked for a dismissal of the charge on the basis that there was no evidence that I possessed paraphernalia. My request was denied, and arraignment was continued to Oct. 15, 2007.

On or about Oct. 11, 2007, Deputy Pennington County State’s Attorney Gina Nelson left a message on my telephone answering machine, informing me that she would increase the charge from a Class 2 misdemeanor to a Class 1 misdemeanor-- SDCL 22-42-15, “ingestion of a substance other than alcohol for the purpose of intoxication.”—if I did not plead guilty to the “paraphernalia” charge.

On Oct. 15, I pled not guilty, and the paraphernalia charge was withdrawn. DSA Nelson then instituted the charge of “ingestion.” I was scheduled for a preliminary hearing on Nov. 21, 2007.

On Oct. 16, HP Trautman filed a “South Dakota Highway Patrol Case Report”, a requirement when a Class 1 misdemeanor is alleged. This report was written nine weeks after the incident it describes.

On or about Nov. 1, Pennington Co. State’s Attorney Glenn Brenner told a reporter that he was going to transfer the case to Meade Co., because the “ingestion,” that he now alleged occurred, would have occurred, according to him, at my campsite near Bear Butte.

On or about Nov. 1, I retained a lawyer, Rena Hymans, of Sturgis. After receiving and reviewing the evidence, she called DSA Nelson several times between Nov. 16 and Nov. 21. Hymans left several messages asking DSA Nelson if she intended to proceed with the preliminary hearing. DSA Nelson did not return the calls.

On November 21, I drove from Sidney, Nebraska to Rapid City on icy highways, damaging my pickup when I hit a road sign as a result. When my attorney and I inquired at the Pennington County Clerk of Courts, we were handed a piece of paper that stated that the charges had been dropped on November 16.

The three trips to Rapid City for appearances, my lost work time, the damage to my vehicle, and my attorney’s fees have created $4027.00 in expenses to me, attributable jointly and individually to the DEFENDANTS, who acted conspiratorially and maliciously, and contrary to law, standard procedure, common sense, and common human decency to deprive me of justice by forcing me to expend money to defend myself against accusations made without evidence.

 

Deputy Pennington County State’s Attorney Gina Nelson should be held accountable for prosecuting a case against me in spite of evidence demonstrating my innocence of the charge.

DSA Nelson had numerous opportunities to mitigate the damage being done to an innocent person by HP Trautman’s orginal baseless charge, i.e., SDCL 22-42A-3, “possession of paraphernalia.” She chose in every instance to compound the offenses committed against me.

At my first court appearance, on Aug. 23, 2007, I asked for dismissal, based on the fact that another party had admitted to the offense of which I was accused. Add to that the fact that I was in a different vehicle from the party who admitted guilt. DSA Nelson refused.

At that point, I had not yet seen HP Trautman’s dashboard camera videotape, which demonstrated my innocence, and made clear that I would likely prevail at trial. I was granted a continuance of my arraignment until I had a chance to review the evidence. My next appearance was scheduled for Oct. 15.

The evidence that showed my innocence of the paraphernalia charge was delivered to me by mail about Oct. 1. HP Trautman’s dashboard videotape stopped, oddly, in midsentence, just as Trautman stated the lie, “Everybody’s admitted smoking weed….”

Prior to that, however, the videotape shows Trautman searching the pickup and bringing a purse and its owner to the car, where he is heard asking Barb if the pipe (the “paraphernalia”) in the purse is hers. She replies that it is hers.

On or about October 12, Deputy State’s Attorney Gina Nelson left a message on my answering machine, threatening that if I didn’t plead guilty to “possession of paraphernalia” that she would charge me with “ingestion”.

Instead of reviewing the tape and deciding, as a reasonable person would, that justice would be served by dismissing the “paraphernalia” charge against me, she decided to take a case with flimsy (at best) evidence and make it a case with no evidence.

When I appeared on Oct. 15 and pled not guilty, she increased the charge to SDCL 22-42-15, “ingestion of a substance other than alcohol for the purpose of intoxication.” A preliminary hearing was scheduled for Nov. 21, on the new charge.

Understanding at this point that I was facing a state-employed lawyer who was simply attempting to extort a guilty plea and several hundred dollars from someone she hoped would cave in to threats of prosecution for crimes he did not commit, I hired a lawyer, Rena Hymans, of Sturgis.

Ms. Hymans asked for and received the “evidence” that I had received, along with the HP Trautman’s newly-concocted “case report.” During the several days between Nov. 16 and Nov. 21, Ms. Hymans called DSA Nelson several times and left messages asking if Nelson intended to proceed with a preliminary hearing. Nelson did not return any of the calls, even though she had signed a dismissal order on Nov. 16.

I drove a round-trip from Sidney, Nebraska, to Rapid City on Nov. 21 to receive a notice of dismissal of the charges, missing one more day of work and damaging my vehicle in an accident on icy roads.

Deputy State’s Attorney Nelson acted like a blackmail artist throughout this affair. The evidence clearly showed that I was innocent of the charge originally made by HP Trautman. One might forgive her taking a second shot at making me pay up and go away; the State’s Attorney’s office thrives on convictions, not dismissals of bogus charges.

However, when I refused to admit guilt of an offense (possession of paraphernalia) of which I was not guilty, DSA Nelson appears to have begun to take this personally. She then conspired with HP Trautman to concoct details relating to a relatively minor incident, one among likely dozens, perhaps hundreds, in Trautman’s experience over the course of the intervening nine weeks between Aug. 7 and Oct. 16, that would justify increasing the charge to “ingestion.”

When my lawyer entered the case, DSA Nelson appears to have decided she had punished me nearly enough for my refusal to admit falsely to guilt and to pay her extortion money. However, she decided to add a final insult.

Knowing that I would have to incur the expense of a final trip to Rapid City and pay my lawyer for her time to come to Rapid City on Nov. 21, DSA Nelson refused to return a simple phone call that would have notified my lawyer that the charge was dismissed.

Having had multiple opportunities to do what a reasonable person would have done, at every opportunity DSA Nelson chose the path designed, and known to her, to create the opposite of justice. In so doing she not only violated the trust placed in her by the taxpayers and voters, she violated her own oath of office and the tenets by which lawyers are assumed to abide.

Deputy State’s Attorney Gina Nelson should be held individually financially responsible for the expenses I incurred in defending myself from charges she knew to be false, or at the very least, unproveable in court. Her actions demonstrate petulance, improper conspiratorial acts, and unprofessionally rude behavior.

DSA Nelson, wielding frightening authority, within the solemn public trust, acted like an ordinary street grifter trying to mug a “mark.”

 

The Office of Pennington County State’s Attorney should be held accountable for the actions of Deputy State’s Attorney Gina Nelson.

There came a point in the affair, “State of South Dakota vs Eric Sage,” when State’s Attorney Glenn Brenner became aware of its detail. Whenever that moment occurred, the Office of Pennington County State’s Attorney, became a party to this lawsuit. 

At that point, as State’s Attorney, employer of Deputy State’s Attorney, a reasonable person looking at the evidence held against me, would have said something like, “Ms. Nelson, I don’t think we can win this; I don’t even think Mr. Sage is guilty. We should probably spend our time in this office prosecuting criminals. Call Mr. Sage today and tell him we are dropping the charges and extend our apology for having caused him inconvenience.”

Instead, the Pennington County State’s Attorney chose to endorse a ludicrous path.

With a concocted Highway Patrolman’s report stating that I said that I had smoked marijuana the day of my traffic stop, SA Brenner told a reporter (on or about Nov. 1) that the ingestion had occurred in Meade County, so he would transfer the case to that county.

From the point he became aware of the details until I had traveled to Rapid City one last time on Nov. 21 only to be told the case had been dismissed, Pennington County State’s Attorney Glenn Brenner, and therefore the Office itself, became a party to a grimy extortion scheme undertaken under the color of authority.

 

I, Eric Sage, state under penalty of perjury that statements of fact in this document are true to the best of my knowledge.

 
s/Eric Sage                  22 January 2008                                                                                        

Attached are copies of the tickets written by HP Trautman, a copy of HP Trautman’s arrest report, a copy of the videotape from HP Trautman’s dashboard camera, a copy of a news story that appeared in the Dec. 13 Rapid City Weekly News, and a copy of the expenses attributable to this travesty that I incurred.

Deputy State's Attorney Nelson's reply to this complaint follows immediately below.

 

Supporting Documents sent with complaints...

The Complaint Narrative

"Chewing and Grinding"

The tickets written by HP Trautman and DSA Nelson

List of Expenses incurred by the victim, Eric Sage

Eric Sage 's reply to Gina's attempted refutation follows immediately below.

   


Eric Sage
A Victim of the Pennington County Deputy State’s Attorney
Sidney NE 69162           
  

February 22, 2008

Margo Tschetter Julius and Other Disciplinary Board Members
The Disciplinary Board of the State Bar of South Dakota
PO Box 8025
Rapid City SD 57709

Ms. Tschetter Julius and Board Members;

In response to Gina Nelson’s attempted refutations of my allegations of unethical conduct on her part:

I am appreciative of this opportunity to explain to the Board the importance of my role as a battered citizen attempting to get help for myself and for others who have found and will find themselves victims of a prosecutor, aided by a legal system, who uses that system to extort guilty pleas and fine money from people like me.

If any of you have not yet watched Trooper Trautman’s dashcam video of the incident that precipitated this ludicrous and cruel chain of events, I urge you to do so. I’ll go so far as to suggest that it would be tantamount to malpractice if you did not watch it.

I’ll grant that Trautman’s stop (of me) was justified, given the context. I was weaving on my motorcycle. The video shows plainly that there was a gusty crosswind, probably approaching 50 mph. The tickets Trautman issued, excluding the blanket paraphernalia ticket, were justified. There are rules of the road, and I had no problem paying up for the legitimate violations.

However, no sane reading of South Dakota law gives a trooper the right to expect a conviction in a case wherein he tickets a person for a violation plainly committed by another person in a different vehicle, especially when that person owns up to the violation.

I’ll grant that it’s hard to get around there being a “shakeout” period when one is accused of a crime he didn’t commit. Mistakes happen. I may have made a mistake myself once. I am not complaining about the first court appearance I had to make. Any fault up to the moment Ms. Nelson called me and belligerently told me to plead to paraphernalia or she’d up the charge to ingestion was that of Trooper Trautman, and is not the concern of the Disciplinary Board of the State Bar.

But by the time she called me (around Oct. 11 or 12), Ms. Nelson had seen the evidence, and knew there was no possibility of a conviction on either charge. At that moment, she committed a violation of

Rule 3.8. Special Responsibilities of a Prosecutor. (The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause).

She continued to violate that rule up to the moment she dismissed the charge, having realized she’d run out of clubs to beat me with.

No competent lawyer could have looked at the evidence and believed a court contest of either the charge of paraphernalia or that of ingestion would result in a conviction.

At the moment Ms. Nelson instituted the charge of ingestion, she violated

Rule 4.4. Respect for Rights of Third Persons.  (In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….).

She also continued to violate that rule up to five days after she dismissed the charge, knowing I would have to drive to Rapid City to learn of the dismissal. It’s instructive that Ms. Nelson had no problem calling me to threaten me with bogus charges, but couldn’t muster her thoughts for “my best interests” when she dismissed the charges yet refused to return my lawyer’s phone calls.

There can be no other explanation for Ms. Nelson’s actions, after she called me in the days prior to the October 15, 2007 court date, than that she was attempting to burden me to the point that I would plead guilty to an offense of which we both knew I was innocent according to the standards of evidence with which one might assume Ms. Nelson is familiar (in acknowledgment of her “importance as a prosecutor in the criminal justice system”).

The Evidence for “Possession of Paraphernalia”

The evidence Trooper Trautman used for the charge of possession of paraphernalia is, apparently, a pipe with marijuana residue and a baggie containing a small amount of marijuana. This evidence is irrelevant to me, since it was found in a purse in a vehicle in which I was not a passenger. Furthermore, the owner of the purse acknowledged that the pipe and marijuana belonged to her. Personally, I never saw the pipe or the bag; all I have to go on is the same evidence Ms. Nelson has.

I have doubt that any lawyer in South Dakota would look at Trautman’s report and the video and conclude he or she could convince a jury that I had “possession” of the pipe. Ms. Nelson clearly believed she couldn’t. Yet she called me and tried to extort a plea and money out of me by upping the ante with a ridiculous charge.

Ms. Nelson’s states, in the second paragraph under the heading, “Argument,” that “the trooper indicated that there were marijuana items in Mr. Sage’s glovebox.” That statement is not supported by any of the evidence, not even in Trautman’s report, which contains more than one fabrication.

The Evidence for “Ingestion”

On tape, Trautman asks Barb (who had admitted owning the pipe and pot) when she last smoked marijuana and with whom. She says “This morning,” and “Them.” Mighty shaky, but, as probable cause for a running shot at me, okay, I’ll accept it.

Trautman says, in his report, that I admitted smoking marijuana. I did not, but it is in the report, and therefore is, I grant, evidence at least for probable cause.

But any prosecutor would know that, at trial, the trooper could expect to be asked a line of questions about his reasons for the stop and for the search and for the charges he eventually instituted.

Ms. Nelson seems to be saying that Trautman could credibly claim in response to such questions that his suspicions were aroused by my weaving on the road, and confirmed by Barb’s and my statements as written in his report, and that I was impaired by my ingestion. Then, believing in his mind that I was buzzed on marijuana, he graciously let me drive on crowded highways so I could “get back to Nebraska,” after “doing me a favor” by writing me a ticket for something he knew someone else had done.

The very same evidence—the testimony of the trooper—that alleges that I admitted smoking marijuana that day also applied to the other three people involved. Under what “discretionary” rationale did Ms. Nelson decide to prosecute only me for ingestion? That appears to be a ludicrously whimsical application of the law. Ludicrous, that is, unless you’re using the “awesome” power of your office to summarily punish someone who won’t plead to something he did not do.

Ms. Nelson’s “Argument”

Allow me to paraphrase Ms. Nelson’s “argument” in the sixth paragraph, and following paragraphs, of the section of her statement titled “Argument.”

In this case I believed it would be fair, and in the best interests of the State as well as Mr. Sage, to offer a plea agreement. So I called him and said I’d let him plead guilty to an offense unsupported by evidence. Further, I told him that if he didn’t accept the agreement, I’d charge him with a crime for which we also had no evidence that would hold up at trial. I also told him that I would subpoena his three friends to testify against him, just to add a little more pressure.

I had only the best interests of the State and the defendant in mind. Had the greasy little biker trash SOB just understood that I was trying to look after him and not cause him unnecessary anguish and expense, I am sure he would have been happy to pay up for something I knew he did not do.

Mr. Sage rejected my generous offer. I had no choice but to proceed with my threat. Perhaps just one or two more legal thrashings of innocent people will take us over the hump in our war against the drug culture.

After all, who will stand between the forces of evil like Eric Sage, who actually associates with people who use marijuana, and the great ignorant mass of citizenry who are threatened by the drug culture, if not me? I have been entrusted with an awesome responsibility to protect mankind from criminal activity and seek justice. No person should have to bear such responsibility. It’s nearly too much for me. But I muddle on through. An elicitation of a plea or two, extracted from innocent people under threat of financial damage and jail, is a small price for society to pay for the weight of the awesome responsibility to which it has subjected me.

Ms. Nelson’s protestations bring me nearly to tears. I feel ashamed of myself for having believed I was merely a tourist in the great state of South Dakota, enjoying its bounty, caught up in a typical entanglement of police malfeasance and prosecutorial misconduct. Her dissertation has revealed to me that I was a cog in the wheel of justice. It’s an awesome responsibility, indeed.

One shudders to think of the innocent people who would be prosecuted if Ms. Nelson did not, as she claims, dismiss or decline to charge cases if she does not believe they are meritorious. Yes, unprosecuted cases wherein cops charge offenses with no evidence is probably one of the great untold stories of American justice. I will have to grant Ms. Nelson the quality of “diligence” in her incompetence and maliciousness.

[Reminder to Ms. Nelson here: You’re making your case to lawyers. They already know the score.]

[Reminder to myself here: You’re making your case to lawyers. They’re not gonna find for a greasy biker SOB over a sweet, awesomely burdened, member of their own club.]

I also note that Ms. Nelson claims she didn’t learn that the alleged ingestion took place, if it took place, at our campground in Meade County, until November 15, blaming the trooper for not informing her earlier.

Had she bothered to look at the videotaped evidence, as I suggested in early October, she’d have seen that we stayed near Sturgis and that Barb says she smoked at the campground. Aside from that, Ms. Nelson’s boss, Penn. Co. State’s Attorney Glenn Brenner, had told Rapid City reporter Denise Ross on Nov. 7 that there was a “jurisdictional problem.” Ms. Nelson is lying when she says she only learned of the Meade County problem on Nov. 15.

Even if what Ms. Nelson were saying about the timeline were true as she knows it (which it isn’t), it still doesn’t explain why she didn’t at least return one of the several phone calls that my lawyer made, leaving messages asking about the status of the case, during the period from Nov. 16 to Nov. 21. There is but one answer; Ms. Nelson was exercising her petulance and attempting to burden me as much as possible right down to the last minute.

Representing well her client, the State of South Dakota? How so? Looking after my best interests? Right.

Discrepancies regarding the videotape

Trooper Trautman claims in his report that I told him I had smoked weed the day of my traffic stop. He says I admitted this in his car (see the final paragraph of Trautman’s report). He does not mention the fact that the videotape, which records conversation in the patrol car, had “stopped” prior to this alleged admission.

Knowing that video and audio would be my friends in this case, I observed the video camera carefully. Knowing a little about videocams, the camera appeared to me to be in operation at all times; the reels were visibly revolving. Yet, this interesting-by-its-absence piece of evidence is missing from the videotape. For the record, I reiterate that I did not tell Trooper Trautman that I had smoked weed or marijuana or whatever you call it that day. No one in our party of four did, except for Barb, who vaguely implicated some or all of us in something, maybe. Trooper Trautman is, at the least, mistaken.

But then, things could get hazy if you wait nine weeks to write a report on a paraphernalia incident, when the intervening nine weeks have exposed you to dozens if not hundreds of similar cases. I can understand that. It was probably somebody else who confessed and he got it mixed up with us.

Summary

Ms. Nelson has thoroughly parsed the awesome responsibility of her quest for justice and to protect the community from bad people.

She has not explained to my satisfaction why she would pursue a case with no evidence to the brink of a preliminary hearing, only to dismiss it because she suddenly discovered the “crime” happened somewhere else. An “appropriate” charge of ingestion, with all of Ms. Nelson’s elaborate case preparation to back it up, should have been a great gift to the Meade County prosecutor, unless he didn’t see quite so clearly how pursuing it would benefit the community. Has anyone asked Mr. Sondreal whether Ms. Nelson even offered him the case?

Ms. Nelson has also not addressed the final middle finger she flipped me. I mean, when you’re looking for ways to “serve my best interests,” one way might be to respond to repeated phone calls from my lawyer asking whether I have to drive 500 miles on icy roads to attend a prelim on charges that have already been dismissed. Had she done that, this exchange would not be taking place. Had she simply shown a shred of human decency at the end of this case, the Disciplinary Board would not be faced with this embarrassing display of incompetence and mean-spiritedness by a member of the Bar, not to mention the stupidity exhibited by Trooper Trautman.

Finally, I have to smile as I read Ms. Nelson’s exhortations that I adhere to the rule of confidentiality. I can certainly understand why she wouldn’t want folks to know about this proceeding. I also understand that I am threatened by the imposition of a contempt citation if I do not adhere to confidentiality. I don’t take that lightly. I know how keen the system is on enforcing the law.

With great skepticism in the face of the actuality of the justice system, I am

Eric Sage

Deputy State's Attorney Nelson's final reply to this complaint follows immediately below.

 

   

The decision of the Disciplinary Committee follows immediately below.

   

   

Return to Eric Sage's complaints to various state offices