Which robocaller is on first? Willard & US Senate Candidate Stace Nelson suing Gary Dykstra.

The robocall saga just took a turn which reminds me a bit of the old Abbot & Costello routine of “Who’s on first?”  From political smokeout:

Daniel Willard and Stace Nelson are suing Gary Dykstra, their alleged co-conspirator in political robocalls who has testified against them.

The two men are defendants in a civil lawsuit filed by state Sen. Dan Lederman, over the robocalls. Dykstra, who has admitted to helping to send out the robocalls, testified about Willard’s and Nelson’s involvement in both that civil suit and Willard’s criminal trial.

Late Tuesday, Willard and Nelson countersued Dykstra as a “third-party defendant” in the civil suit, saying some of his testimony “has not been truthful” and has caused Willard and Nelson to be “damaged.”

Read it all here.

So, Dan Willard is charged, tried and convicted of making the illegal robocalls during the last election.  Rushmore PAC files a civil lawsuit against Willard, once Willard’s name comes out. Gary Dykstra implicated him, and also implicated now US Senate candidate Stace Nelson in the civil lawsuit, but Nelson was not indicted in the criminal trial.

As part of the court proceedings in the criminal Robocall lawsuit, as part of the defense, Willard’s attorney, R. Shawn Tornow offered as part of his argument that Stace Nelson could have done it. But, now that he’s representing Nelson, R. Shawn isn’t making that argument any more.

As part of the latest twist, Willard and Nelson “countersued Dykstra as a “third-party defendant” in the civil suit, saying some of his testimony “has not been truthful” and has caused Willard and Nelson to be “damaged.” (as cited in the above Argus article)

Why do I think this has the likelihood of dragging out for a while?

Argus covers Robocall legal sanctions, attorneys tussle.

David Montgomery covers my recent court victory in an article today, and also covers a little back and forth from the attorneys, who are both also involved in the civil trial:

In a ruling filed Monday, Foley determined that Willard subpoenaed the two men “at least in part as a means of punishing (individuals) who have filed a civil suit against Willard and with whom Willard may disagree politically.”

Willard was ordered to pay $250 each to Powers and Lederman. Willard’s lawyer, R. Shawn Tornow, was not sanctioned.

and…

“My client felt that Lederman’s and Powers’ request for approximately $21,000 was excessive,” Tornow said. “However, he is also concerned about any sanctions being awarded (against him) and wants to further review that as part of his decision to appeal.”

Arends said his clients are content with the $500 in total penalties Willard was charged and glad Willard was found to have acted improperly.

“These guys all think they’re tough guys when they hide behind these anonymous attacks, but when you call them out on it … what we saw is how desperate these guys were to cover their own asses and exact revenge on their political opponents,” Arends said.

Read it all here.

Daniel Willard sanctioned by the court for abusive subpoenas. I win a moral victory, if not a monetary one.

“You can’t always get what you want
But if you try sometimes you just might find
You get what you need”
  – Rolling Stones

Well, I won.

What did I win? The court case to defend my reporter’s privilege, in the face of those who wished to use the courts to harass me because I write South Dakota’s #1 political website. As much as I’ve wanted to cheer on it, I’ve been patiently waiting while the court decide what to do about it. And how much of my attorney’s fees that Mr Willard would be paying.

What case am I referring to? The Robocall Criminal case where defendant Daniel Willard was found guilty of paying for robocalls without having the proper disclosures. As part of the trial, myself and Dan Lederman (who is suing Willard & US Senate Candidate Stace Nelson among others civilly) found ourselves subpoenaed.

What was their reasoning for dragging me into the circus? They wanted to pick my brain to see if things had been leaked to me, and – this is no lie – to see if I had used my magical technical powers to track phone calls. Which was, and remains, an idiotic presumption.

So, I fought it, and I won. I just had to hang tight so see to what degree I’d won.

This has been a long time in coming, so, what did Judge Foley have to say about it? Here’s my copy of it, in black & white:

Judge Foley’s Ruling on Subpoenas by Pat Powers

So, what were the highlights?   From page 2:

“Petitioners Powers and Lederman seek sanctions in the form of attorney’s fees and costs and in their brief claim they incurred $10,600.00 in fees to confer with counsel, research,draft, and argue all pleadings and motions in this case as it pertains to them..”

We asked for $10,600 in legal fees…..   From Page 5:

In this particular case, Mr. Arends is a veteran of the legal profession and a solo practitioner. The fees of $200.00 an hour for his work are reasonable. After a careful review of the work necessary to argue the motions and pleadings, the Court finds the hours worked on this issue to be reasonable. In fact, the Court would like to commend Mr. Arends on the fine legal work he displayed in this matter.

Judge Foley was complimentary to the thoroughness of our attorney’s work, but….

Further, as described in Guthrie, “a lessor amount of terms will still serve to send a message … and prevent further abuses.”

The Judge thought messages are more important than amounts… Wait, What? From page 6:

While the Court is sensitive to the actual attorney’s fees Mr. Arends accumulated on behalf of his clients, those fees must be weighed against the equities of the particular facts in this case. The argument that Willard should have to pay the price of forcing Lederman and Powers to go through this ordeal is strong. But the more compelling aspect of this issue is the need to impose “punitive” terms upon Willard for issuing abusive subpoenas, not necessarily making Mr. Arends’ clients whole. Mr. Arends’ work must be deemed successful; his clients paid to have their subpoenas quashed . The Court feels that success should come at a price to Mr. Arends’ clients themselves, not just Willard.

Aw, darn it. If we wanted to contest the subpoena, we had to pay for a big chunk of the privilege of doing so. Again, page 6:

As mentioned, the Court has already determined there was bad faith involved in the issuance of the two subpoenas at issue. The Court has taken the position that the issuance was done, at least in part, as a means of punishing an individual who have filed a civil suit against Willard and with whom Willard may disagree politically.

Yes, the judge recognizes that they were being jerky to us, hence the “bad faith” involved in the issuance of the two subpeonas. And the end result:

CONCLUSION: After careful consideration of the four factors provided by the South Dakota Supreme Court in Guthrie, the Court finds reasonable the imposition of sanctions in the amount of $250.00 for issuing the subpoena to Mr. Powers in bad faith, and $250.00 for issuing the subpoena to Mr. Lederman in bad faith. The Court imposes terms equaling a total of $500.00 against the defendant, Daniel Willard.

As a result of all of this, the court set the precedent that some bloggers, in this case, specifically me, are Journalists in the eyes of the law. And, that Daniel Willard was pursuing this matter against me in bad faith.

And so, I’ll just cue up the Rolling Stones on my jukebox to remind myself that “You can’t always get what you want. But if you try sometimes you just might find, you get what you need.”

Northern Plains News looks further at who is simply a mere blogger, and which of us rise to the level of Journalist

Todd Epp at the The Northern Plains News further probes the issue that was brought up in the Willard trial last week of “who is a blogger” and “who is a journalist,” and what are the ramifications of the decision this last week in court:

So, who is a journalist?

Gebhart says that while a journalist may be a blogger not all bloggers are journalists.

“Gathering news and disseminating it to the public is the key for me,” Gebhart said. “If bloggers are doing that, then their information regarding confidential sources is worthy of protection. If they’re simply expressing personal opinion or navel gazing, it’s entirely different.”

For Marek, it’s how the blogger or citizen approaches their writing and reporting.

“In my opinion, a journalist is not defined by the channel of communication used, but rather is someone who uses the principles of journalism, such as quoting sources and quoting them accurately, not plagiarizing and similar fundamental practices,” Marek said.

Read it all here.

Ladies & Gentlemen, someone tried to take us out.

Thursday, while in court for the trial of convicted robocaller Daniel Willard, one of the SDWC’s army of readers asked me in court if I was having problems with the website, as they had been diverted to an alternate website, one which I recently used to ban someone who wouldn’t follow the rules.

I thought…. Did I inadvertently ban one of our loyal readers? But my site seemed ok to me. Something to look at later.

On the way back from the trial, I had a message from another of SDWC’s loyal readers over twitter that they were getting an odd result when trying to go to the website. They were getting diverted to the alternate page as well.

I pulled over, and checked the website, as this was a little more complex than tapping things out on my phone. And I shut down the “banning software.”

A couple of calls later, I encouraged people to clear their cache, and I went on my way for the next day & a half. But I kept getting little notes, here and there. Clear your cache, all will be well.

It finally dawned on me yesterday after I was able to duplicate it myself – someone was intentionally diverting SDWC traffic. It was a form of a DOS or, Denial Of Service attack.

Most traffic came in directly to dakotawarcollege.com, and that worked as always, allowing readers to get the best in South Dakota political happenings from the #1 political website in South Dakota. But put the three letters in front of it, making it www.dakotawarcollege.com, and you were kicked out.

Once discovered, it didn’t take long to resolve, but the whole episode was interesting, and educational.

First off, the timing was so, so interesting & coincidental, coming at the same time as the final day of the Willard trial, as if someone was trying to knock us off the air for covering it. Not saying it had anything to do with it, but it’s darned curious.

Secondly, it makes you wonder who would be so threatened by SDWC that they would lake the affirmative, and highly illegal action to attack our political home on the web.

Finally, the number of people banned, who would have ever known that page & function existed to divert traffic numbered so few, that it’s silly. It will not be difficult to divine the guilty party.

Regardless, thanks to the crack SDWC technical team, we’re back and fully on the air for all to see.

Because you can’t keep a good man journalist down!

So, what did we learn from the Willard experience?

As a postscript to the case, I was pondering “What did we learn from the Willard experience?”

A co-worker and friend asked me about it, and I noted that for Willard, it seemed to be the equivalent of a teenager getting mad over something, and in anger, driving his car into a brick wall at thirty miles an hour. And all that does is wreck the car, bang up the person and anyone along for the ride, and the brick wall remains stands unchanged.

And that’s the closest analogy I can give.

Willard and cohorts were mad about a bill, so they wanted to go after the people who sponsored it. The problem is, based on the manner in which this brain trust had laid out their thoughts, nobody wanted to put their name to it.

(Maybe that’s a good rule of thumb – if you wouldn’t put your name to it publicly, maybe it’s not going to be an effective tactic. Because it had no effect whatsoever.)

The thing is, and what is so confounding about why they did this and how they carried it out – Daniel Willard had the ability to speak with a singular voice on a topic that obviously concerned him greatly. But because he decided to be sneaky, he utterly and completely botched it, and in the process, made a wreckage of his reputation, and the reputation of others involved.

As chairman of the South Dakota Young Republicans, and having been involved in the local politics, it wasn’t Willard’s first time at the rodeo. Daniel Willard had all the tools at his disposal to move mountains. He could have easily changed hearts and minds. Willard could have stood up publicly, identified himself as a disabled veteran, and explained why he disagreed with the legislation while it was in progress, or after the legislation passed. He could have led a campaign on the issue, and been the public face of it.

Frankly, I think it’s something he could have done which would have raised his standing and reputation among his peers in politics. If there’s one thing I understand about politics, it’s that good people can disagree – even strongly – about issues. And once the dust settles, you move on, possibly to fight the battle another day.

But instead of publicly standing up for an issue he cared about, Willard took the low road. And look where it got him?

Instead of being viewed as passionate fighter for his causes, he’s viewed as being sneaky. He’s viewed as being a lawbreaker.   He’s viewed as being someone who has to drive away as Ben Dunsmoor walks after him with a microphone in hand (1:20 in clip below).

And don’t even get me started on Gary Dykstra.

He may have gotten immunity for his testimony, but the indelible image of a disheveled man hiding his face from the cameras, and his complete evasiveness – even with the grant of immunity – left many observers agape. Willard’s attorney, R. Shawn Tornow, tried to further damage Dykstra’s credibility pointing out how he has a problem telling the truth.

And where does that leave State Representative and US Senate Candidate Stace Nelson? Dykstra named him as a co-conspirator in the testimony, a contention that Nelson has denied in the past. And Willard’s attorney asked in closing arguments “why didn’t you hear from Representative Stace Nelson?”

As a candidate for the highest state office on the ticket, Nelson is in an unique place that no one else involved in the matter is – for better or worse, he is a candidate for a very public office.  Since the trial has started, the Nelson US Senate campaign has made no statement about the allegations of Nelson’s involvement in the Robocall matter, something that will likely be brought up by his opponents if he continues to run silent on the matter.

And the brick wall Willard drove into still stands, while the vehicle was wrecked, and the people alleged to be involved are left injured and licking their wounds.

Was it all worth it?

Only for the lesson for others that there are far, far better ways to accomplish things. Otherwise, absolutely not.

Charged, Tried and Convicted.

Dan Willard has been charged, tried, and convicted of four counts of “Failure to identify the name and address of the maker of a communication within 60 days of an election.” Class 1 misdemeanors

The sentence – $250 for each count plus $84 in court costs plus the reimburse the state for the expense of prosecuting the case.

He also gets 30 days in jail for each count, suspended. The conditions to stay out of the poky are:

1.remain a law-abiding resident for 364 days
2.not anonymously put forward any political positions or opinions.

Whoa! If I understand this correctly, Dan Willard can not post anonymous comments on political blogs. My guess, that includes using some of the more colorful monikers.

But we also have a selection of other colorful user names coming from the same IP address noted in court today as having been held by Willard for a time; Anonymous, Show yourself Coward, The South Dakota Republican Party is Disgraceful, To hell with Tim Rave, Lee Schoenback is a Nazi, Blue Falcon (a.k.a Troy Jones), No Charlie Hoffman, Guns after Gosch, South Dakota YR’s, and finally, NO NOEM.”

here

There is a a huge US Senate election coming up, and the blogs becoming more and more active. I wonder if Mr. Willard can restrain himself for a whole year, or should he just serve the 120 days and get it over with?

Can these conditions be enforced? Are they worth enforcing ?

4 counts, 4 guilty verdicts

Picked a heck of a time to drive to SF, huh? Jury came back like lightning, and slapped the Willard team definitively:

Willard’s defense said in closing arguments that because prosecutors only have only linked Willard to the calls through the credit card number, email address and IP address, there is not enough evidence.

It took the jury just over an hour to find Willard guilty of all four charges he faced.

Read it here.

I keep asking myself how this type of representation works?

wheres_Nelson

In the closing arguments, Ben Dunsmoor tweeted that “Willard’s Attorney asks ‘Why didn’t you hear from @RepStateNelson'” referring to US Senate candidate & State Representative Stace Nelson. Earlier, I had tweeted that “In court, Tornow seemed to question if @RepStaceNelson was doing calls.”

I’m sure the statements were made by Willard’s attorney R. Shawn Tornow in an effort to attempt to deflect blame against his client, and to obtain an acquittal for Willard.

However, the last I knew of it, I was of the understanding that in the civil suit of Dan Lederman against the alleged robocallers, including Stace Nelson, Nelson is being represented by the same R. Shawn Tornow who was seemingly rolling him under the bus in the trial.

But didn’t R. Shawn just get spanked by the Supreme Court for conflicts of interest?

I just keep asking myself how this type of oppositional representation works? Can any attorneys out there elucidate?

On Blogger's Privilege

At the beginning of this week’s Dan Willard’s robo call trail, the honorable Judge Foley ruled,

“I am of the opinion that… bloggers in their vein are journalists in the modern sense of the word,”

then went on to say, he would review the testimony of Mr. Powers in private then decide if the jury should hear it.

At the core this discussion is should bloggers have the same protection as professional journalists when it comes to confidential informants? There no hard, fast, right or wrong answer.

Many bloggers and journalists will use the First Amendment as a defense.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

of course these rights are not absolute, there are limitations.

The Department of Justice does have guidelines for issuing subpoena to news media

  • In criminal cases, there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
  • In civil cases there should be reasonable grounds, based on non-media sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial importance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
  • The government should have unsuccessfully attempted to obtain the information from alternative non-media sources.
  • The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.
  • Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.
  • Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.

from the Wikipedia

The way I read this, the Department of Justice should keep their paws off the media, unless they have no other option and they have to be specific what they are going after.

Like attorney/client or doctor/patient relationship, the idea of reporter’s privilege is to allow the flow of information. It allows people to come forward with information and not be identified. Unlike doctor/patient or attorney/client, the reporter must agree state they will keep the informant’s name out of print. Reporter’s privilege shouldn’t be handed out like parade candy either. Most editors and reporters won’t agree to keep a source anonymous unless there is no other way, and there is really good reason to not publish the source. However, there are cases that the only way to get the full story is to let the scource remain anonymous.

The courts have generally upheld Reporter’s Privilege, but not always. Journalists have gone to jail, in order maintain their integrity. Some cases have been through a lengthy and messy (expensive) court battles.

The other dangerous side, by not citing a source, a journalist could have their work called out. Remember this story: A South Dakota Based Internet rumor? Truth or Fiction?
I think everyone’s BS meter spiked. Only because the author/journalist didn’t provide any real sources The story couldn’t be verified, or followed up on. The only updates were the ones provided by the author. I can understand wanting to protect a minor from the sometime intrusive and relentless media. However, we need some way to independently verify the story.

Reporter’s Privilege is an important tool in a journalist’s tool box, reporters and editors should know when to use it, and that its use can come with a hefty price. Use with care.