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Judge, prosecutor asked to explain why South Dakota lawmaker's court records sealed in DUI case

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Gary Cammack

A lawyer representing the Rapid City Journal has asked a judge and the Pennington County state's attorney to explain why a state lawmaker arrested for DUI was able to have his case sealed in an apparent violation of state law.

State Sen. Gary Cammack of Union Center was arrested at 5:31 p.m. on Jan. 18, 2020, a Saturday. The charges were filed Jan. 21 in Meade County. Pennington County Deputy State's Attorney Alexandra Weiss was assigned the case due to conflict-of-interest concerns with the local state’s attorney, Mark Vargo, the Pennington County state’s attorney, previously told the Journal.

Cammack, 69, pleaded not guilty to first offense DUI on Feb. 4. On June 29, 2021, he pleaded guilty to the reduced charges of careless driving and speeding.

Fourth Judicial Circuit Magistrate Judge Chad Callahan gave the current state Senate majority leader a suspended imposition of sentence and upon the completion of sentencing conditions, which typically includes what is known as the six-month condition, meaning the defendant can’t violate the law during that period of time to satisfy the sentence. Cammack also was ordered to pay a fine of $431.50 for careless driving, $39 for speeding and $222 in court costs.

The case remained unsealed until Corey Heidelberger saw the court documents on a state judicial website and published it Oct. 5 on his political blog, Dakota Free Press. Judge Callahan ordered the case sealed on Oct. 4.

In his letter to Judge Callahan, Vargo, Weiss and Cammack’s defense lawyer, Nathaniel Nelson of Sturgis, the Journal’s attorney, said the decision to seal the case at this time is an apparent violation of state law. Since Cammack pleaded guilty on June 29, the case can’t be sealed until Dec. 29, Jon Arneson said in his letter while seeking clarification on the judge’s decision and the Pennington County state’s attorney office's role in crafting the plea agreement that appears to violate the state’s “6-month condition.”

"My client understands that mistakes happen, but under the unusually odd circumstances of this case, I sincerely believe we are entitled to a better understanding of how this matter went off the rails, so to speak, and a detailed account of how it was put back on the rails in an effort to keep Mr. Cammack’s file sealed, retroactively, to June 29, 2021," Arneson wrote in the email sent Tuesday. "At the end of the day, we would just appreciate a definitive chronology. … Otherwise, reasonable doubt remains."

None of the parties have responded to the attorney’s request as of Wednesday morning. A call Tuesday to Vargo’s office by the Journal for this story was not answered. The reporter left a message asking if the prosecution approved the deal.

Nelson, however, in an email to the Journal, claims the plea bargain included an order to seal the case in June. The defense attorney also sent the Journal a copy of the arrest report, which was filed by a South Dakota Highway Patrol officer. According to the report:

Cammack was stopped that Saturday while traveling east on South Dakota Highway 34 in Meade County for speeding and not dimming his lights. The officer said radar showed the vehicle traveling 54 mph in a 45-mph zone. He noted the smell of alcohol on Cammack after he approached the vehicle’s driver side window.

A “bloodshot and glassy-eyed” Cammack explained to the officer that he and his wife had just butchered a cow that had hurt their son earlier that day and were returning to their son's residence to see how he was doing.

Cammack said that the only thing he had for supper was a “whiskey coke” that he drank 10 to 15 minutes before the traffic stop. He also did not have his driver’s license with him. After a field-sobriety test, Cammack was arrested at 5:47 p.m.

When the officer informed Cammack that he was being placed under arrest, the Republican lawmaker "stated that he was a legislator and asked if there was another test he could do," the report states.

Cammack then agreed to a blood test, was handcuffed and transported to the Meade County Jail in Sturgis where his blood was withdrawn at 7:11 p.m. His blood-alcohol level was .082, which is over the state’s legal limit of .08.

Nelson said in an email to the Journal that he recently asked Weiss if the state had any objections to modifying the case and sealing the court records.

Weiss replied "no objection," and Judge Callahan wrote in an email that he had no problem with an immediate seal assuming fines and costs were paid, according to the defense attorney.

The order to seal case was signed by Judge Callahan at 12:54 p.m. on Oct. 4.

The order noted that no probation had been set as a condition by the court and that all other conditions imposed had been observed by Cammack, which made his case eligible under state law to be sealed.

How the conditions set by the court were changed to no longer require that Cammack be required to go six months without violating any laws raised new questions by Arneson.

"I have an obligation to my client to attempt to put all the pieces of the puzzle together," he wrote in Tuesday’s email. "Normally, I would apologize for continuing to pester counsel with questions, but, to be frank, my client and I are not the cause of the confusion surrounding the procedure in this case and application of SDCL §23A-27-12.2 and §23A-27-14. And, to be sure, the inability to see the documents that might inform complicates my job immeasurably."

Arneson added there should be evidence of a plea bargain between Weiss and Nelson that was approved by the court.

"Typically, I suspect, there should be some evidence of a plea bargain between Ms. Weiss and Mr. Nelson, approved by the court, that expressly excludes any “probationary” period. That would at least suggest that the attached dispositional record was just a mistake on somebody’s part," he wrote.

Arneson told the parties that if the documents aren't provided he will file a motion in an effort to learn when and why the judge ordered the case sealed less than three months after Cammack pleaded guilty to the reduced charges and was granted an imposition of sentence.

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