court

The ‘longest,’ ‘most emotional’ experience: Attorneys mark final plan approval in Boy Scouts case

Delaware Law Weekly

More than two and a half years after the Boy Scouts of America first filed for bankruptcy in the District of Delaware, attorneys for tens of thousands of sexual abuse survivors are celebrating the court’s approval of a final Chapter 11 plan.

Judge Laurie Selber Silverstein’s final approval last week means a trust of more than $2.4 billion in settlement funds obtained to date can start to be distributed to the more than 82,000 abuse claimants, though there’s no set timetable for when that process will be complete.

Continue reading here.

California judge says right to jury trial overrides agreement to litigate in Delaware

Delaware Business Court Insider

A California plaintiff can’t be made to take his case to the Delaware Court of Chancery, a Los Angeles County Superior Court judge has ruled in what that plaintiff’s attorney says is likely the first decision to address the issue.

The trial judge’s ruling in the case filed by William West against Access Control Related Enterprises LLC, issued by Judge David J. Cowan of the Los Angeles County Superior Court on July 29, stated that enforcing a forum selection clause requiring a California resident to pursue a case in the Court of Chancery violates Californians’ constitutional right to a jury trial, unless a defendant can prove doing so would not infringe on that right.

Continue reading here.

How Delaware courts have kept running during COVID-19

Delaware Business Court Insider

More than three months since Delaware’s judiciary first declared a state of emergency, state courts have reported there likely won’t be much of a case load to catch up on as courthouse activity ramps back up.

Since courtrooms were first closed to the public March 23 in response to the COVID-19 pandemic, the judiciary and attorneys have been using remote methods to keep cases moving, many of which are being carried into the courts’ reopening stages.

Continue reading here.

At least nine involved in case of teenager who lied about age

The Daily Republic

Read the original story here.

A Mitchell man was sentenced Tuesday to 15 days in jail for fourth-degree rape, making him the ninth person in the past 14 months to be sentenced for an offense involving the same victim.

Trevor Clark, 26, was granted a suspended imposition of sentence and ordered to serve 15 days in jail.

While The Daily Republic found nine criminal cases linked to the same boy through a search of Davison County court documents, Judge Chris Giles has indicated at multiple hearings that upwards of 20 people were investigated in connection with the now-17-year-old victim, identified in documents only as C.L.W.

Continue reading →

U.S. Appeals Court: Tribes have right to review FCC-regulated development

The Daily Republic

Read the original story here.

The U.S. District Court of Appeals for the District of Columbia ruled Friday that the Federal Communications Commission cannot make smaller 5G towers exempt from a review process on tribal land.

The decision remands the issue back to the FCC, as the court ruled that Rule 1779, which went into effect in July 2018, violated tribal rights under the National Historic Preservation Act to determine whether proposed structures such as cell towers and antennae will have an impact on historically or culturally significant land.

Continue reading →

Dealing with attempted murder cases, charges

The Daily Republic

Read the original story here.

Dawn Long and Mark Cook’s cases may not have had much else in common, but they did begin and end with the same charges.

Both were at one point charged with attempted murder and, like many across the state who faced similar charges, ultimately accepted plea bargains and are now in prison for aggravated assault. That outcome has been the most common among the state’s attempted murder cases in recent years.

Continue reading →

Court rules on evidence in upcoming murder trial

The Daily Republic

After testimony from 17 prospective witnesses and argument from both sides, decisions on several motions were made Friday morning in preparation for the trial of a Mitchell man accused of killing his wife in 2017.

Judge Chris Giles granted the state’s requests to allow hearsay statements made by the decedent, Marie Brinker, as well as evidence of the domestic relationship she had with 40-year-old James Brinker, the man who will stand trial for her death five weeks from Monday. Giles denied the defense’s motions to suppress statements James Brinker made to law enforcement and to not allow the state to call a witness to speak to domestic abuse in general.

Giles said the decisions he made Friday are preliminary and may be adjusted as he further examines evidence prior to the trial.

Relationship, hearsay evidence will be allowed

The state motioned to allow evidence of the Brinkers’ domestic relationship into the trial on the grounds that doing so would give the jury more context. Deputy Attorney General Robert Mayer said if the jury was not given evidence, such as testimony from three of Marie Brinker’s neighbors who testified that they saw altercations between James and Marie Brinker prior to Marie’s death, James Brinker would be given a “pretense of warmth and affection” to which he doesn’t have a right.

Giles agreed that evidence of abuse and the Brinkers’ domestic relationship is relevant in the case and determined that testimony from the three neighbors and Marie Brinker’s father and brother, Jan and Brody Berkhout, would be allowed during the jury trial.

Also permitted will be a protection order filed by Marie Brinker against James Brinker which was found by DCI Agent Josh Twedt while he was executing a search warrant at Marie Brinker’s home on the day of her death.

Raleigh Hansman, one of Brinker’s attorneys, said during the hearing that the protection order should not be allowed as evidence because although Marie Brinker had signed the order, multiple sources said the handwriting throughout the petition was not hers and that the order was granted by agreement, rather than at a hearing or by James Brinker admitting to something.

Giles said that while the protection order needs to come into evidence, he needs additional time to review it before making a final decision on whether the petition will be allowed.

The court also granted the state’s motion to allow hearsay statements made by Marie Brinker. Those will include testimony of conversations from Jan Berkhout; Marie Brinker’s long-time friend, Michelle Ryan; and two acquaintances, April Bierema and Karen Tovsland. All said Thursday that Marie Brinker had told them of injuries James Brinker had inflicted on her, and many said they had seen bruising or other injuries.

Jan Berkhout said Thursday that the relationship between his daughter, known as “Mimi” by her family, and James Brinker had been “confused and unstable.” He said that Brinker once kicked Marie Brinker in the mouth to stop her from talking, but that “it didn’t count” because he could have kicked her much harder.

Berkhout also recalled speaking to his daughter while she was in a Sioux Falls hospital in 2017 and being told that she had been airlifted there because her husband had kicked her in the head, causing internal bleeding.

“He told me that all of Mimi’s injuries and medical problems were self-inflicted,” Berkhout said.

Recordings of two 911 calls from 2017 in which Marie Brinker can be heard crying and saying that James Brinker either had hurt or was going to hurt her were submitted into evidence, as was a series of text messages about James Brinker sent by Marie Brinker to Brodie Berkhout.

Those text messages, which Berkhout said during his testimony Thursday that he turned over to police, included statements such as “James … almost killed me” and “James was punching me and kicking me again and caused trauma to the head.”

Hansman argued prior to the court’s decision Friday that Marie Brinker may have given false information to those people in order to gain sympathy or otherwise benefit herself.

“There’s absolutely nothing in the record supporting this,” Mayer said.

Court: police didn’t illegally seize Brinker for interview

Brinker’s other attorney, Chris Nipe, said Friday in support of a defense motion that there were several problems with the way Brinker was taken into custody and interviewed after Marie Brinker’s death, the first of which involved Brinker’s Miranda rights.

Nipe said that Det. Sgt. Dean Knippling and Det. Brian Larson’s testimonies indicated Brinker was in an interview room for multiple hours and was interviewed by both officers with breaks throughout. He said that meant that Brinker had not properly been Mirandized, as he was only read his rights once.

“At some point, this shifts from being one interview to being more than one interview,” Nipe said.

Deputy State’s Attorney Doug Barnett disagreed.

“There is absolutely no legal requirement to re-administer Miranda warnings after a 12-minute break or a two-minute break,” he said.

Additionally, Barnett said Brinker never requested a lawyer or asked to stop the questioning despite having had contact with police and being Mirandized several times prior.

Nipe said Brinker was illegally seized and that his behavior during the interview indicated that his statements were not given voluntarily. He argued that police picked Brinker up and did not allow him to leave despite not having any evidence linking him to Marie Brinker’s death, making any statements he made to them afterward inadmissible.

Giles, in explanation for denying that part of the motion, said it appeared that Brinker had been taken in for questioning as a person of interest and that he had gone voluntarily.

There was discussion throughout the hearing over whether Brinker’s behavior throughout the interview, which witnesses said included getting on the floor in a fetal position, yawning and crying without shedding tears, was due to theatrics or possible drug use. Giles ultimately sided with the state, saying that the behavior appeared to be theatrical and that drug use did not impact Brinker’s behavior or his ability to answer questions voluntarily.

Testimony and video taken from body cameras from several additional law enforcement officers from the Mitchell Police Division will be allowed in the trial, as granted by one or more of the motions addressed Thursday and Friday.

The only pieces of evidence the court specified would not be permitted during the trial were those related to Joel Reinesch, who was a sergeant for the Mitchell police at the time of Marie Brinker’s death and James Brinker’s arrest.

Giles said comments made to Reinesch by Brinker en route to the police station, as captured by a body camera recording, were unsolicited and would prejudice the jury against Brinker more than they would make a point necessary for the trial. He said that if Brinker were to take the stand during the trial, however, the state could potentially use that video as evidence of Brinker’s demeanor at the time.

Foreclosure case could involve more than 31,000 head of cattle

The Daily Republic

Read the original story here.

A Douglas County court addressed Thursday morning a multi-million-dollar foreclosure case involving thousands of head of cattle, a car crash and at least enough interested parties to fill a courtroom.

The case was brought by First Dakota National Bank against Robert and Becky Blom, of Corsica, on Feb. 8. The bank’s complaint asserts that the Bloms had overdrawn their account by more than $1 million and that, in combination with Robert Blom’s incapacitation following a car crash last week, was enough for the bank to consider itself insecure.

In addition to the bank, nine law firms filed notices of appearances in the case representing 17 additional parties. However, it’s currently unknown just how many parties will be involved in the case or how much money is owed, as not all parties have yet been identified. Parties in attendance at the hearing declined to comment on the case to The Daily Republic.

As of Feb. 7, the complaint stated that the Bloms owed a principal amount of $6,748,600.92 in notes and an additional $792.75 per day in accrued interest on those notes.

While it’s not yet known how much money the Bloms could owe in total to all parties, court documents indicate that one company – Gader Livestock LLC, of North Dakota – had entered into a sales contract on Jan. 26 in which the Bloms had agreed to pay $269,674.26 for 146 steers and 120 heifers.

Robert Blom was arrested and charged with a first-offense DUI on Feb. 5 after he was involved in a crash and gave a preliminary breath test of 0.18 when he was booked into the Davison County Jail. According to a probable cause affidavit, Blom’s family members indicated to law enforcement that he had “told them they would be better off without him being around.”

An affidavit filed by Wayne Williamson, the bank’s senior vice president, the same day as the complaint stated that a loan officer had been “advised by Robert Blom that he has prepared false documentation to customers for approximately three to four years” and that all of the Blom’s assets will have to be liquidated to satisfy the bank and other creditors’ claims.

That affidavit, which also asserted that Blom had moved additional cattle, was the catalyst that motivated the bank to request the implementation of a receiver to speed things along.

Lew Dirks, a Sioux Falls-based investigator, was appointed as the receiver in the case and will ensure that the cattle are cared for, determine what cattle belongs to each party, be responsible for moving and liquidating the cattle involved and take legal action as needed to repay debts and get information as needed, as well as other investigative tasks.

The case will move forward once Dirks identifies more of its components. Multiple attorneys told The Daily Republic that they could not comment on the scope of the case because they have only just gotten involved and currently only know the specifics of their clients’ side.

More than 50 people were present at the Douglas County Courthouse for Thursday’s hearing, during which the Bloms were determined to have defaulted in the foreclosure by not responding to the complaint. Members of the Blom family were present in the courtroom, but attorneys said they had not heard anything from anyone claiming to represent them.

Dirks testified Thursday that based on the conversations he’s had with interested parties over the course of several days, he’s currently estimating that this case involves 31,450 head of cattle. On three feedlots, he said he’s found 4,953 head in total and has heard rumors of an additional 2,400 being moved before he got involved with the case.

“Those numbers are moving daily,” he said. “Since Friday afternoon, it went from 10,000 to 31,000, as of (Wednesday) night.”

Dirks said he expects to have to file additional suits to get information on cattle sales and trucking records for any cattle that may have recently been moved. He said that he’s currently aware of seven legally-binding contracts that included Robert Blom’s signature and that for those, there is currently enough fat cattle to fulfill one and possibly part of a second one, and that he thinks it would be in the involved parties’ best interests to have the remaining cattle liquidated, which he hopes to have done within 30 days.

“I think the receiver needs to act as expeditiously as possible,” Judge Bruce Anderson said early in the hearing. “The cattle – they can’t stay out there forever. Some of them are ripe for market. They’ve got to go.”

To track cattle as much as possible, Dirks said he’ll be using brands, tags and veterinary information, as well as information from claimants. To gather invoices or other information from the Bloms’ business, the court ordered Todd Cowman, who owns and operates an IT business in Yankton, to complete imaging of the Bloms’ hard drive on Thursday.

Vivian man gets 40 years for killing infant

The Daily Republic

Read the original story here.

KENNEBEC — A Lyman County court sentenced Gerald Brink on Friday morning to spend 40 years in prison for killing his 7-week-old daughter in May 2017.

Brink, 38, was convicted of domestic abuse first-degree manslaughter, to which he pleaded guilty on Oct. 25. He was sentenced to 50 years in the state penitentiary with 10 years suspended, and he will be eligible for parole in 30 years.

Continue reading →