Suspect in 24-hour standoff with 130 law enforcement officers wants charges dismissed for 'outrageous government conduct'
CHAMBERLAIN, S.D. — The suspect in a 24-hour standoff with more than 130 law enforcement officers last year in Kimball is seeking dismissal of all charges based on "outrageous government conduct," the state's attorney prosecuting the case said.
Donald London, 43, of Kimball, is facing multiple felony charges and appeared at the Brule County Courthouse from Monday through Wednesday to discuss two motions: that law enforcement officers were on the property illegally without a search warrant and their actions should be classified as outrageous government conduct.
"If the judge grants the motion that it was outrageous government conduct, then the case is gone," Brule County State's Attorney Dave Natvig said.
A previous motion filed by London allowed the defense to receive expert testimony that could support the motion to dismiss.
London was charged with two counts of attempted first-degree murder and three counts of aggravated assault against a law enforcement officer, all class 2 felonies, following the January 2015 standoff, in which London allegedly barricaded himself in a Kimball house for 24 hours and shot at law enforcement, injuring a Highway Patrol trooper.
London and his late father, Michael London, were arrested after the incident, which involved an armored vehicle, tear gas and flash grenades. He pleaded not guilty by reason of insanity on Jan. 27, 2015.
At least 132 law enforcement officers arrived on the scene, court documents state. London motioned for the payment of up to $20,000 for the services of David Lauck, a police procedure expert who could support his motion to dismiss.
As part of the request, the defense waived the chance to use a crime scene reconstructionist, which was already approved, as the police procedure expert "will be a more appropriate and beneficial expert for the defendant," court documents state.
In a responding document, Assistant Attorney General Bridget Mayer called the motion "frivolous, unreasonable and irrelevant," saying an expert on police procedures "is not relevant to defendant's allegations of outrageous governmental conduct." She also supported the officers' actions, saying officers in a Mine-Resistant Ambush Protected (MRAP) vehicle never fired their weapons, although shots were fired from John Koenig, a former highway patrolman who London "shot and wounded," according to court documents, and Trooper Adam Woxland after London shot first, and officers in a Bearcat truck fired at a generator.
The other tactics, like the use of tear gas and flash grenades, were used hours after London allegedly completed his indicted crimes and were used to prompt his surrender and prevent his suicide, court documents state.
Anderson approved payment to Lauck in March but capped the fees for his services at $6,000.
Following the three-day motions hearing, Natvig said he doesn't expect the case to be dismissed.
"Would you want to be a judge out here and dismiss this case?" he said.
According to Natvig, the outrageous government conduct defense has been used in cases when a police informant, for example, attempted to uncover a drug dealer but ingested drugs at the scene to do so.
In this case, Natvig said law enforcement was on scene to keep London, the other officers and the community safe.
"I would just say that, as far as what I heard, that law enforcement just did a fantastic job from start to finish," Natvig said. "Absolute professionalism from start to finish from ... all agencies involved and obviously in horrible conditions."
Natvig said there will be two more dates to hear motions in September and October. He doesn't expect any orders to come from Judge Bruce Anderson, who is presiding over the case, before the October hearing.
Change of venue
Another motion filed by London that was not addressed was for a change of venue, arguing that extensive media coverage of the incident has led the defense to believe London cannot receive a fair trial in Brule County.
A small change of scenery was already approved for the three-day hearing, in which London was scheduled to appear in Winner in Tripp County instead of Chamberlain because Brule County could not provide sufficient security, since "almost all Brule County (Sheriff's Office) officers are subpoenaed for the hearing," court documents state. However, the hearing was later moved back to Chamberlain after area law enforcement agencies agreed to send officers to Chamberlain.
In the motion for a change of venue, Tim Whalen and Brad Schreiber, London's attorneys, said their client could not receive a fair trial in Brule County because "the events that transpired during the stand-off were extensively covered by the news services and media." They included several Daily Republic and KELO articles in the document.
As support for the motion, the attorneys named Koenig, who is now employed as a deputy with the Brule County Sheriff's Office and "is believed to reside in or around Chamberlain." According to the motion, London also "assaulted other law enforcement officers who work and/or reside in the Brule County area."
According to court documents, a fundraiser was held for Koenig in Chamberlain, and posters of Koenig were displayed at Al's Oasis, a gathering place for local residents and a popular stop for tourists.
Furthermore, Whalen and Schreiber argued many Brule County citizens know or "are in some fashion aware" of at least one officer involved in the incident, given the county's population of 5,255 as of the 2010 census.
The state responded to the motion for a change of venue, quoting a 1987 case, State v. Weatherford, "pretrial publicity alone is not enough to deny a fair trial or, in other words, to warrant a change in venue."
Instead, publicity must be "so prejudicial as to prevent the defendant from receiving a fair and impartial trial in the county," and the news stories on London's case were "purely factual and do not provide an opinion as to defendant's guilt or innocence," the state's response said.
Furthermore, because coverage was statewide, a jury in another venue could have been exposed to the same publicity, so the most effective way to determine if a change of venue is needed is through voir dire, the preliminary examination of a juror before a trial, it said.
Judge Anderson has also taken steps to avoid any conflicts of interest.
On June 28, Koenig was assigned as bailiff for a "motion day" in Brule County. Anderson, realizing Koenig was the former patrolman injured by London, advised the sheriff that "while this case is pending, Officer Koenig may not work in the courtroom," according to an email sent to the attorneys, clerk and sheriff involved in the case.
Furthermore, Karen Koenig, John Koenig's wife, was recently hired as the Brule County court services officer's secretary, court documents state, and has recently sat in the courtroom as a substitute clerk of courts. Because of this, Anderson decided that any presentence investigation and report, if London is convicted, will be assigned to the Mitchell office.
Included in Anderson's letter was an offer for the defense to file for the appointment of another judge, but Whalen said London will not ask Anderson to recuse himself.