ABERDEEN, S.D. — A special prosecutor pressing contempt-of-court charges against members of the U.S. Marshals Service at the center of a courthouse dispute in South Dakota over COVID-19 vaccinations says he is not on a "fishing expedition." But requesting phone records from marshals who may have approved a walk-out of an Aberdeen courthouse, with criminal defendants in tow, has already been denied once.
Last week, U.S. District Judge Brian C. Buescher denied Rapid City attorney Thomas Fritz's request to subpoena more than a month's worth of phone records of three high-ranking marshals. Fritz alleges the three marshals, including a Virginia-based chief of staff, may have approved or even ordered a deputy marshal to defy U.S. District Judge for the Northern Division of South Dakota Charles Kornmann's request that only vaccinated persons enter his courtroom, triggering a stand-off between the federal judge and the USMS.
But in a pared down request filed this week, Fritz argues that, as court-appointed attorney, he possesses "no investigatory arm" and that the Verizon phone records alone from May 10, including text messages, pictures, or incoming and outgoing phone calls, could help him piece together the events before and after the marshals left the courthouse.
"This is no fishing expedition," wrote Fritz.
A previous request seeking the much wider deadline for cellular records was slapped back in an Oct. 12 order from Buescher, who is overseeing the case after Kornmann recused himself. Buescher argued "absent more specificity" on what prosecutors hoped to find, he wanted to avoid wading even deeper into a "dispute between branches of the federal government."
The dispute in Aberdeen has attracted something of a who's who of legal firepower in South Dakota: Former Attorney General Marty Jackley, former U.S. Attorney for South Dakota Ron Parsons, and Sioux Falls trial attorney Scott Abdallah are representing the accused marshals.
In a fiery hearing this summer and prior to recusing himself, Kornmann accused the marshals of "kidnapping" criminal defendants on May 10. That day, USMS personnel left the Aberdeen courthouse following Kornmann's decision to bar a lower-ranking marshal -- identified in court papers as "deputy marshal Kinney" -- from his courtroom after she'd refused to provide him with her vaccination status. The individuals in custody later saw their hearings conducted via Zoom.
Throughout the case, defense attorneys for the marshals -- including Marshals chief of staff John Kilgallon, Marshal for the District of South Dakota Daniel Mosteller, and deputy South Dakota Marshal Stephen Houghtaling -- have argued their clients acted lawfully, as they were ordered to transport and accompany the criminal defendants.
In a reply dated Sept. 24, Parsons and Jackley characterized the proceedings as a "criminal prosecution of three honorable individuals" who, effectively, were "following the instructions of their leadership at USMS headquarters in Virginia."
A jury trial at the federal courthouse in Sioux Falls is scheduled to start Dec. 14.