Updated: 3:20 p.m.
FLANDREAU - A Moody County jury comprised of eight women and four men began deliberating the fate of Rep. Bill Janklow at 12:45 p.m. Monday.
The Republican congressman is charged with second-degree manslaughter, reckless driving, failure to yield and speeding in the death of Hardwick, Minn., motorcyclist Randy Scott Aug. 16 at a rural Moody County intersection.
An hour after the jury began deliberations, defense lawyer Ed Evans of Sioux Falls asked judge Rodney Steele to declare a mistrial.
Evans said that during his closing arguments, prosecutor Roger Ellyson incorrectly stated that the defense didn't tell the state that it would be making a medical defense of the charges until two weeks before the trial began.
In fact the defense made those known at the end of October, Evans insisted.
Steele refused to declare a mistrial.
In closing arguments Monday morning, prosecutor Roger Ellyson told jurors that this is "an easy case to decide. It's easy not because of who the defendant is, but because Randy Scott, a farmer and businessman from Hardwick, Minn., lost his life."
Ellyson said it is undisputed that Janklow, 64, sped through the stop sign at the intersection of Moody County highways 13 and 14 south of Flandreau.
He also said the prosecution provided testimony that the congressman had sped through the same intersection almost eight months earlier, nearly striking the Dana and Jennifer Walters family of Trent.
As for the Janklow defense that he was suffering from hypoglycemia, or low blood sugar, at the time of the accident, Ellyson offered a number of reasons why he didn't believe that was a reasonable defense.
The congressman told EMTs Tom Price and Mark Bonrud within 45 minutes of the crash that he had tested his blood-sugar levels earlier in the day "and he was fine," Ellyson said. "He also told EMT Tom Price that he had eaten earlier that day."
He later told Dr. Tad Jacobs, a Flandreau doctor and county coroner, the same thing, Ellyson said.
After Ellyson's 50-minute opening argument, defense lawyer Ed Evans of Sioux Falls made his pitch to the jury.
Evans followed a theme of "searching for the truth."
"Let's try to make sense out of this senseless tragedy," Evans said. "It was a tragedy. And it doesn't make sense to drive through a blind intersection, risking your life, the life of your passenger and the lives of others."
Evans said prosecutors and DCI investigators had access to 1,000 pages of Janklow's medical records, and should have known he was a diabetic, but made no effort to have a blood sample tested that was taken from the congressman on the day of the accident.
"We know Janklow hadn't eaten for 18 or 19 hours. It seems like a glucose test might have produced useful information," Evans said. "But it sits in the state lab in Pierre. And when we finally make arrangements to have a personal courier deliver it to Dr. Jerry Simmons in Sioux Falls, we can't test it because it's spoiled."
Evans said his search for truth took him to Lovrien, a nationally recognized endocrinologist in Sioux Falls who, at first, was skeptical about Janklow's medical defense.
"He's not a hired expert from out of state," Evans said. "He's not a friend of mine or Mr. Janklow's. But he was interested in the truth."
Lovrien testifies that based on Janklow's weight, his use of insulin and the fact he hadn't eaten for 18 or 19 hours, "he almost certainly would have been experiencing low blood sugar at the time of the accident," Evans says.
The defense lawyer also countered Ellyson by saying that any suggestion that previous medical records showed Janklow had never tested low for blood-sugar levels was unfair.
Most of the records available were generated when Janklow was undergoing medical treatment - times when he sought help for high blood-sugar levels, Evans said.
"To suggest that based on the records when he was going to his doctors that he doesn't go low, it's either being awfully naive or is an attempt to mislead you," Evans said.
In his arguments to the jury, Ellyson said Janklow knew that if he had taken his insulin shot that morning and hadn't eaten for 18 hours, "it would be extremely dangerous for a diabetic on insulin to drive at high speed."
"In his own words," Ellyson continued, "the defendant said he knew the risk.
He's still guilty of manslaughter if low blood sugar is his defense. It goes to conscious disregard of a substantial risk. So this, ladies and gentlemen, is an easy case."
The prosecutor also provided a timeline to show that he didn't believe Janklow was suffering from the inattentiveness, lethargy and slowed thinking common for hypoglycemia before the accident.
At nine minutes before the accident, Janklow was pointing out where his mother lived in Flandreau, and where another friend lived, Ellyson said. Six minutes before the accident, he was driving south on Highway 13 and pointing out where a bar had once stood at the Three-Mile Corner south of town.
At four minutes before the crash, he passed motorist Monica Collins on the highway "like she was standing still," Ellyson said. "Do you disbelieve the testimony of their own witness, Dr. Fred Lovrien, who said he wouldn't have been able to do a complicated maneuver like that if he was suffering from hypoglycemia?"
Two minutes before the accident, Janklow was talking to his congressional chief of staff, Chris Braendlin, about a farmstead on both sides of the highway. And at the moment of impact, he shouted "watch out," and hit his brakes - both signs of a driver who wasn't lethargic or inattentive, Ellyson said.
"Where is the hypoglycemia?" Ellyson asked. "Where is the confusion? You can't fit it in because it's not there."
Ellyson said Braendlin never testified that he saw anything wrong with Janklow that caused him concern or motivated him to want to drive.
"He even testified that everything was 'hunky dory' up to the time of the collision," the prosecutor said.
Ellyson said when the congressman was asked what happened, he told those at the scene that he had seen a white car come into his lane of travel, swerved to miss it and sped through the intersection. Yet he told Trooper Jeff Lanning that he was slowing for the stop sign at the time of the accident.
"The defendant wants you to believe he didn't see the stop sign," Ellyson said. " 'I was slowing up for the stop sign,' he said. 'I just raced around a car in my lane of travel and gunned it around them.' "
Those statements are proof that he wasn't disoriented or confused after the accident, and exhibiting symptoms of hypoglycemia, Ellyson said.
They also are indications that he intentionally lied about what happened that day, the prosecutor added. "Why does someone put out a false story and repeat it?" Ellyson asked.
"Obviously, it is to cover up the truth. The defendant has to explain why he went through this stop sign at high speed. He's a smart man. He knows the trouble he is in."
So the "phantom white car" is not going to work, Ellyson told the jurors.
Nor is the low blood-sugar defense, he said.
"Low blood sugar is a defense potentially available to every diabetic taking insulin that is involved in a motor vehicle accident," Ellyson said.
Though Lovrien testified for the defense that Janklow was on a heart medication called Atenolol that would have masked his early low blood-sugar levels, such as shaking and jitteriness, Ellyson said testimony showed that doctors at Mayo Clinic took him off that medication a month before the accident.
The prosecutor said medical records on Janklow also show that his problem was not low blood sugar, but high blood sugar.
Ellyson concluded by talking about the testimony of former highway patrolman Lyle Tolsma, who testified that he clocked Janklow at 84 mph in a 40 mph construction zone east of Rapid City in April 2002.
"It looked like the defendant was on the verge of losing control of his car," the prosecutor said. "So the trooper pulled over as far as he could to avoid being hit."
Then there was the near miss eight months earlier with the Walters family at the same Moody County intersection as the Aug. 16 accident, Ellyson said.
"Ladies and gentlemen, this was a predictable outcome for a person who drives as the defendant does," the prosecutor said. "The defendant's driving is like a crazy game of Russian Roulette. On April 27, 2002, Trooper Tolsma took a blank. On 29, 2002, the Walters family took a blank. On Aug. 16, 2003, at 4:41 p.m., Randy Scott took a bullet."
Evans said it was noteworthy that no members of the Trent Volunteer Fire Department were called to testify, and they were the first people on the scene. Janklow was photographed holding a cup after the accident, and Evans said he could have gotten Gatorade from a fire department member.
The defense lawyer said there was nothing in the radio log of Jennifer Walters' call to 911 on Dec. 29, 2002, where she talked about a motorist running the stop sign.
Deputy Sheriff Tony Aas, who stopped Janklow on Highway 13 after the Walters incident, said the congressman told him he didn't remember running a stop sign. Also, though Walters testified that she went back to look at Janklow's skid marks later, Evans said the antilock brakes on Janklow's Cadillac wouldn't have left the kind of skid marks Walters said she saw.
"And where is her husband?" Evans asked. "Why didn't he testify? Because he didn't see it."
Evans said one of three things happened at the intersection on Aug. 16. One, he was suffering from low blood sugar and the symptoms caused him to go through the stop sign. Two, he didn't see the stop sign, had no benefit of rumble strips, and inadvertently missed it.
Or three, he intended to go through it.
"You have the opportunity to do the right thing," Evans told the jury. "Not because of who Mr. Janklow is, but because you had the opportunity to hear the whole truth and hear all the testimony, and no one else did."
He quoted the wife of former Supreme Court Justice Oliver Wendell Holmes, who used to tell her husband as he walked out the door each morning, "Do justice today, dear."
"Do justice today," Evans told the jurors. "Don't do what the prosecutors did today. Don't put a blind eye to a very reasonable explanation for this senseless tragedy."