- This story
was originally published in the Summer 1999 edition of
The FIJActivist, the newsletter of the
Fully
Informed Jury Association
-
- Drug Check
Ahead
-
- by Bob Newland
-
- The annual Sturgis, South Dakota, Motorcycle Rally
is the largest tourist event in South Dakota. For
about fifteen years, the State of South Dakota has
also recognized it as a huge revenue-extracting device
for law enforcement. For the past five years or so,
vehicle forfeitures during the Rally have approached
half a million dollars each year. Fines and cash
confiscations have added another quarter of a million
per year.
-
- I've lived in the Black Hills all my life, and
I've been intimately associated with the Rally for the
past 13 years. Virtually every department of
government with a law enforcement arm has
bubble-topped vehicles stopping motorcyclists, "cages"
(cars), pickups and vans one after the other for ten
solid days in the vicinity of Sturgis in late July and
early August. It's rather bizarre to see Forest
Department pickups with two ninja-clad occupants
pulling folks over on Interstate 90, way outside the
boundaries of the National Forest.
-
- In 1998, the SD Highway Patrol began teaming up
with the National Guard with roving "drug checks". The
scenario is this: A lighted marquee flashes "Drug
Check Ahead" on some stretch of Black Hills Highway.
South Dakota National Guard spotters with binoculars
watch vehicles as they approach the sign. Around a
curve or over a hill are parked three or four Highway
Patrol cars. A DCI (Division of Criminal
Investigation) unmarked van waits on an approach as
cars and motorcycles drive past it toward the
sign.
-
- The spotters look for "suspicious" actions on the
parts of operators or occupants of the civilian
vehicles. Any suspicions result in a search at the
roadblock.
-
- On July 31, 1998, Hot Springs chiropractor and
Republican candidate for the South Dakota House Mike
Koehn (pronounced "co-en") pulled out of his rural
driveway and headed for his office in Hot Springs on
SD Highway 18, a "drug corridor". The drug check was
set up a short distance away along his path. As he
approached the marquee, he noticed what he later found
to be the DCI van pull up to and stop at the flashing
sign.
-
- More or less unconsciously, Koehn pulled over
behind the van, thinking he was supposed to stop
there, too. While stopped, he checked his briefcase
and doctor bag, and looked for his proof of insurance.
The van then pulled away, and Koehn noticed there was
no reason to stop at that point. He proceeded over a
hill and was stopped at the roadblock, where the van
pulled up behind him with a dashboard cherry flashing.
The van's driver walked up and asked for
identification. Koehn identified himself, and the
driver, a locally-stationed DCI agent, said, "Oh, Doc,
I know you. Go on." Mike continued with his day
normally.
-
- At midnight that night, Koehn answered a knock and
walked out onto his deck in his underwear, where he
was confronted by weapons-brandishing lawmen. They
told him that they had found a vial of white powder
near where he had stopped, which they suspected to be
cocaine. The cops asked for urine.
-
- Koehn said, "Well, I'll tell you now that it's
possible it might show THC." The cops said they didn't
care about that; they wanted evidence of coke. "If
only THC shows up, we won't bother with it." And, as a
matter of fact, under South Dakota law, there isn't
much they could do, with no leaves, stems or seeds as
evidence.
-
- Mike peed in the cup and went to bed. Within a few
days, he was a household topic in South Dakota. The
notorious Governor Janklow, having been almost
immediately notified that a member of his own party
and a nominee for the House had been caught smoking
dope and was suspected of possession of cocaine,
immediately called for Koehn to withdraw from the
race. DCI agents took samples of Koehn's hair to test
for drug use.
-
- Statewide, it was front page news. Koehn, trading
insults with the leader of his own party, went on to
be elected to the House in November. Rod Lefholz, a
Rapid City attorney and former prosecutor, was
appointed "special prosecutor" to investigate the
charges. Throughout the winter, and the legislative
session in February and March, the Janklow/Koehn feud
continued, while Lefholz convened grand jury sessions
to interrogate witnesses. Koehn won wide respect for
his good sense and debating ability among his
legislative colleagues. He was called out of session,
arguably illegally, to appear in front of the grand
jury more than once.
-
- In March, Lefholz submitted a bill for about
$13000 to the Fall River County Commission, about
$2.00 for every resident of the county, a figure equal
to about half the public defender budget for the
entire year. Yet, no charges were filed. County
residents were outraged.
-
- Mark Barnett, South Dakota Attorney General,
saying he didn't want to "be any fairer to Koehn than
to any other citizen", put Lefholz on the state
payroll so he could continue the "investigation".
-
- Just about one year to the day from the incident
on Highway 18 outside Hot Springs, Lefholz announced
grand jury indictments of Koehn for possession of
marijuana, ingestion of marijuana (Note that the
ingestion of marijuana IS the possession under this
bizarre charge.)-- both misdemeanors, and possession
of methamphetamine -- a felony. So, suddenly, instead
of cocaine, the contents of the vial were crank,
fitting well with South Dakota's "Meth is Death"
campaign. The arraignment was held on August 18, 1999.
Koehn pleaded "not guilty" to all charges.
-
- South Dakota law states that "possession of
marijuana" must include the element "leaves, stems
and/or seeds, or the residue thereof, of the cannabis
plant". It states that to be convicted of "ingestion
of a substance other than alcohol for the purpose of
intoxication", date, time, form, location and intent
must also be identified.
-
- Two National Guard spotters testified that the
"suspicious activity" they saw included Koehn
nervously rifling his own vehicle, then throwing
something out. However, one said it went out the left
window, the other said it went out the right.
According to a DCI agent, the vial was found just
beyond the "fog line" (the stripe at the edge of the
traffic lane) on the side of the road opposite Koehn's
lane of traffic.
-
- Remember, this is right at the point where the
flashing "drug check ahead" sign was located, and that
a number of vehicles had passed that point prior to
Koehn, that day.
-
- No methamphetamine was found in Koehn's urine, nor
in his hair samples, which, according to conventional
wisdom, contains a complete history of drug use for
the length of time the hair was growing. Armpit, chest
and head hair were tested. There were no fingerprints
on the vial.
-
- Lefholz has made an amazing and insulting motion.
He asked that, since the state's lab tests showed THC
content, but showed no evidence of use of
methamphetamine, Koehn be allowed to talk about the
THC test results, but not about the negative results
for methamphetamine use. "Your honor, since our tests
don't support our claims, we ask that our own
exculpatory evidence be suppressed." In a normal
world, and perhaps even this one, that motion would
not be granted. We'll see.
-
- Koehn's trial is scheduled for early November. Rod
Lefholz has his eye on the South Dakota Attorney
General's seat. Mark Barnett is craving the soon-to-be
vacant governor's chair. Both are under the spell of
the drug-war crazed Governor Janklow, who last year
spent a great deal of political capital trying to get
a bill passed which would put ANY drug offender,
including the possessor of a seed, in the state pen
for 30 days, even for a first offense. (If you have
access to the web, see
<http://www.nakedgov.com/sb210editorial.htm>)
-
- A casual observer might read this account and say,
"Huh? That's their case, and they're pursuing it?
There MUST be more to it. Why would Lefholz take a
case like that to trial?" That was my reaction, too.
Larry Dodge and I talked to Koehn at length on August
22. We both believe him.
-
- Given the extreme lengths to which the executive
branch has gone to this point, though, we think that
the state is still capable of nefarious works, and
nothing can be taken for granted. A campaign for
informing potential jurors in Fall River County (pop.
7200, with about 3500 potential jurors) is in the
works. This one could be fun!
-
- [Mike Koehn does need financial help to obtain
the services of unbiased scientific experts in the
field of fingerprints, urinalysis, hair analysis, and
other fields to both substantiate the state's test
results and to refute the state's rather convoluted
logic in some aspects of this case. Please send any
help you can to: Rep. Koehn Defense; Ray Kennedy,
Treasurer; 510 University Ave.; Hot Springs SD
57747]
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- This
editorial appeared in the October 23, 1999, edition of
the Rapid City (SD) Journal.
-
- Prosecution
of Mike Koehn doesn't add up
-
- by Bob Newland
Bob Newland, 51, of rural
Hermosa, is the chairman of the Mount
Rushmore State
Chapter of the
National Organization for the Reform of Marijuana Laws
(NORML).
-
- Author's note: All representations of fact are
supported by documents in evidence.
-
- The strange case of Dr. Mike Koehn's prosecution
for illicit substances illustrates much of what's
wrong with the so-called "war on drugs".
-
- Koehn, Hot Springs chiropractor and then-candidate
for the South Dakota House of Representatives, said
publicly in early 1998 that Governor Janklow "spoke
out of both sides of his face" concerning the
DM&E.
-
- Having won the primary election, Koehn was stopped
at a joint South Dakota Highway Patrol/National
Guard/Division of Criminal Investigation drug check on
July 31, 1998. DCI Agent Bob Beyer said that two
"spotters" with binoculars told him Koehn seemed
"nervous", and that he had made what could be
construed as a "throwing" motion.
-
- Neither spotter saw an object thrown. One said the
motion was toward the left window, the other said it
was to the right. Beyer said he found a vial
containing cocaine on the roadway where Koehn had
stopped. About one-half hour after Beyer says he found
the vial, Koehn returned through the same drug check
and was allowed to proceed.
-
- Eight hours later, at 12:30 a.m., Beyer and a team
of agents came to Koehn's house with a search warrant
(obtained from renowned civil libertarian Judge Jeff
Davis) for urine. Koehn said it might test positive
for THC (marijuana). Beyer said, "... you're not gonna
be charged with anything like that, okay?" He was
looking for "Cocaine, controlled substance,
methamphetamine." Koehn peed in the cup. The results,
available a few days later, showed THC, but no
controlled substances.
-
- Four days later, Dr. Koehn received a call from
Attorney-General Mark Barnett, responding to Koehn's
inquiry about the urinalysis. On tape, Barnett and DCI
Director Richard Lake are heard before dialing. Lake
asks whether Barnett thinks Koehn will withdraw from
the legislative race. Barnett says, "I don't think
he's bright enough to get off the ballot."
(Speculation is invited about the relative
"brightness" of people speaking thus on a tape
recording meant to protect them.)
-
- In the call, Barnett suggested Koehn submit to a
polygraph and to hair analysis. Koehn agreed. Barnett
told Koehn that hair analysis showing no presence of
controlled substances would "put to rest the
allegation that something was tossed out ...."
-
- Shortly thereafter, Governor Janklow called Koehn
and told him things would go "hard" on him for not
withdrawing. Two weeks later, Janklow told the Custer
Chronicle that Koehn had "flunked" the urine test, and
that Koehn had refused to submit to a polygraph and
hair analysis. In fact, the DCI waited two months to
ask for the hair test (after Koehn had his own doctor
perform one) and never asked for a polygraph.
-
- Fall River County States Attorney Pat Ginsbach
recused himself in August. Barnett appointed former
Pennington County prosecutor Rod Lefholz. Lefholz
proceeded to:
-
- 1) convene several grand jury hearings.
-
- 2) have Bob Beyer, lead investigator in the
prosecution and a witness, present at all grand jury
testimony, contrary to South Dakota law.
-
- 3) have three other witnesses present during grand
jury testimony, allowing them to conform their stories
to that of previous witnesses.
-
- 4) disclose grand jury testimony and other
non-public information to the press, contrary to law
and ethics.
-
- 5) conduct numerous interviews of Koehn's
neighbors and associates, planting extensive innuendo,
but receiving no corroborating evidence.
-
- 6) withhold, in violation of a judge's order, the
results of those interviews.
-
- 7) extract from the grand jury indictments for
ingestion and possession of marijuana and possession
of methamphetamine, in spite the absence of ANY
evidence of possession of either marijuana or
methamphetamine. (No one says they saw the vial in
Koehn's possession. No fingerprints were found on the
vial. South Dakota law requires "stems, seeds, or
leaves" for a marijuana possession charge. No one has
ever been prosecuted in South Dakota for mere presence
of THC in their urine.)
-
- 8) ask the judge to suppress evidence showing no
amphetamine use. ("Your honor, since our tests support
Dr. Koehn's story, we don't want him to tell
it.")
-
- 9) bill Fall River County for $23,512.95, plus
witness and grand jury fees.
-
- South Dakota's governor, attorney-general, crack
Division of Criminal Investigation director and a
senior agent, and a special prosecutor appear to have
conspired to manufacture a case after having reached
the verdict. Their goal? To please the governor, to
punish Koehn for suggesting Janklow was dishonest in
statements about a railroad.
-
- The result? Judge Warren Johnson dismissed the
case because of Lefholz's illegal conduct of the grand
jury proceedings, avoiding addressing Lefholz's other
egregious conduct. A bill for $4 to every resident of
Fall River County, to prosecute a case without
evidence. A bill to Dr. Koehn for ..., well, defense
lawyers don't work for nothing. Goal
accomplished.
-
- Barnett continues lusting for the governor's
throne, and Lefholz for that of attorney-general.
Resumes swollen by the accomplishments of this case,
they seem to have the proper credentials.
-
- Law enforcement competence in this case meets or
exceeds that of drug-law enforcement nationwide. One
wonders why drug use continues to rise.
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