Friday, March 27, 2015

Re: EB-5. What Got Buried With Benda? Is It Too Much To Ask For The Autopsy Report? You go, Mercer.

     Bob Mercer, the South Dakota columnist and blogger whose work on the much-discussed
Seeking Facts
(photo from Aberdeen American News)
EB-5 "cash for green cards" fiasco remains unfinished, has been doing a yeoman's job of trying to get some information on the imbroglio that South Dakota Attorney General Marty Jackley refuses to release.  
Mercer wants the autopsy report on the suicide of Richard Benda, the SD state official who was most closely identified with the debacle, and is suing the Attorney General in an effort to get the information released. This week South Dakota's Supreme Court is hearing Mercer's appeal of a lower court's ruling that AG Jackley is within his powers to hold the information back.  It's a messy deal.  The well-known timeline has it that Benda killed himself at about the time that Attorney General Jackley was going to have the official arrested for his shenanigans in the EB-5 affair.  As the matter is still under investigation by federal authorities, the last words on who did what remain to be heard.

     Meantime, South Dakota's state legislature tried to put some closure on it last December.  It's legislative committee blamed the whole mess on Benda. Considering that the State of South Dakota may be out as much as $120 million because of the way the EB-5 program's operations were diverted from the state to private control, there's some reason to wonder about the details and surrounding circumstances of Benda's suicide.  Dead men don't talk, but their autopsy reports may have some information worth pursuing.
     Mercer's curiosity is not a solo itch.  A poll of likely voters last Fall showed that 56% wanted more information.  AG Jackley so far has successfully made the case that the autopsy remains a private document and that its release must have the go-ahead of Benda's loved ones, who no doubt are still emotionally staggered by all this. Mercer counters that public interest in the whole sordidly expensive mess should trump the otherwise compelling need for
Won't Disclose
(photo from
privacy and personal feelings. Cory Heidelberger puts it in a nutshell in his recent analysis of the situation at Dakota Free Press, calling Mercer's arguments moral ones that fall short of statutory mandates and that "our conservative state supreme court seems unlikely to look past the letter of the law." Though SDSC's agreement* to hear the case certainly confirms that the stakes here are of the highest, I guess I have to agree that the outlook for Mercer--and the rest of us who want to know everything that happened--is not so good.

     Just the same, there's the matter of how compelling is the need for truth to emerge, for justice to be served.  I happen to think it's pretty damn important, and I certainly hope that somewhere inside the statutory imperatives there's enough wiggle room for the facts of EB-5's catastrophically expensive--and tragic--venture in South Dakota to escape into the fresh air and sunshine of full disclosure.  

*To clarify, as reader Kurt Evans notes in the comments section below, SDSC hears all appeals that come before it.  I stand corrected and informed.  


  1. John,

    Was there a written request by the Benda family to keep the autopsy sealed?

    When the Supremes dismiss Mercer's case, I expect them to do so, is there any probability that FOIA case be moved to federal court?

    I'm pretty certain that Rounds, Jackley, Bollen, et al. would not want this case to go more public than it already is.

    1. Roger, on page 10 of Mercer's brief (go to Cory's blog for the whole thing) it says that Benda's former wife sent Jackley and Mercer an e-mail saying she would try to stop release of the document. As to the move into the federal courts, I don't know.

    2. John wrote:
      >"Though SDSC's agreement to hear the case certainly confirms that the stakes here are of the highest ..."

      I believe our state supreme court automatically hears all appeals.

      Roger wrote:
      >"... is there any probability that FOIA case be moved to federal court?"

      I don't believe there's a FOIA case involved. The Freedom of Information Act applies to information and documents controlled by the United States government.

      Thanks for keeping light shining on this subject, John.

    3. Thanks for clarifying the SDSC's role in this, Mr. Evans.

  2. Kurt,
    I did misspeak, this isn't a FOIA case since South Dakota apparently doesn't have FOIA laws.
    The proper question should be, is there any basis for Jackley vs Mercer to be heard in federal court?

  3. It's me, John, posting on behalf of JEFF BARTH, who couldn't get into the comment section (have no idea why not): "After Travon Martin was killed in Florida they released the autopsy report that the deceased had smoked pot. Did they ask his mom to OK that information release?

    When Michael Brown was shot dead in Missouri they released the info that he had pot in his system. Did they ask his folks first?

    If Richard Benda had been smoking pot while he criminally diverted millions to himself and his friends would that info had been made public?

    The truth will out. Let it come out now!"

  4. John/Jeff, those are good examples of others' disregard of family privacy to serve state interest. Alas, they won't alone compel the court to change state law.

    Roger, I don't think you can wage a federal case unless someone' broken a federal law. I'd speculate that Mercer would have to prove that South Dakota's open record exemption statutes violate the Constitution. The AG's reasoning is that Favish does not invoke such Constitutional issues, only specific lines of FOIA.

  5. An investigation and autopsy conducted at tax payer expense is not private information. What in the hell are these clowns doing to our country? Both the Obama administration and fellow Chicago lawyer Daugaard's administration are very fond of secretive government to protect cronies. It is a perversion of America we should all be disgusted with. Secret Police in USA? Is that really what we want? Our country continues to spiral down to the depths of 3rd world countries ruled by petty despots.