Before deciding whether an indictment charging David Lykken with murder should be dismissed, a judge wants to determine if a change in South Dakota law affects the case.
After hearing oral arguments Monday from both Mike Butler, Lykken's attorney from Sioux Falls, and Assistant Attorney General Rod Oswald, who is prosecuting Lykken, Circuit Court Judge Steven Jensen requested that the two write supplemental arguments supporting their positions.
While spelling out what he was expecting from the two attorneys, the judge indicated that Butler, so far, has provided a more convincing argument than the state.
"I think that statute, unless somebody wants to argue otherwise … unless there is a plain intention stated in the statute, I don't think it applies retroactively," Jensen said. "So I'd like to have both sides provide additional information on that issue."
Jensen was talking about a 1997 change in state law that spells out how juveniles today may be tried in adult court.
The attorneys will submit their findings to the judge at a hearing scheduled Aug. 6 in Elk Point.
Jensen stated he would issue a written response after receiving the additional information.
Earlier in July, Butler filed a motion asking Jensen to dismiss the charges against his client because of a jurisdiction issue.
Lykken, 53, who's in prison on an unrelated conviction, pleaded not guilty earlier this month in Union County to six alternate charges: two counts of premeditated murder, two counts of felony murder and two counts of murder. The maximum punishment for all six counts is life in prison.
The new indictment charges that Lykken, who was 16 at the time, killed Cheryl Miller and Pamella Jackson on or about May 29, 1971, in Union County.
According to court documents, on or about May 29, 1971, Lykken killed Miller while raping her and killed Jackson while kidnapping her. The two 17-year-old Vermillion girls were last seen leaving Vermillion in a 1960 Studebaker Lark for a party at a rural Union County gravel pit.
In 2004, investigators searched Lykken's boyhood home in rural Alcester, and unearthed two hubcaps, a red purse, rubber gloves, clothing and other items, but no human remains.
Lykken is currently serving a 227-year prison sentence in the South Dakota State Penitentiary for an unrelated rape and kidnapping. If found guilty of any of the murder charges, he would face a sentence of life in prison.
Butler was appointed as Lykken's attorney and filed a motion July 17 to dismiss the indictment.
He argued that South Dakota law in 1971 required jurisdiction to start in juvenile court and could move to adult court only after a transfer hearing before a judge. That law has since been changed.
"The question before the court is whether the law that was in place and in force in 1971 at the time of the allegations against Mr. Lykken, who was 16 at the time, would apply for purposes of determining the court's jurisdiction," Butler said.
Lykken's attorney cited several examples of case law to back up his position, including a Minnesota Supreme Court decision.
The court states, in a footnote, Butler said, "the essential question in determining what court has jurisdiction is the age of the individual when the alleged violation took place."
Oswald argued that it is the transfer hearing itself that is subject to due process and constitutional protection, not the mechanism for getting the transfer hearing.
"The state suggests that either way, a juvenile transfer hearing, if wanted by the defense, could be done," Oswald said. "The motion to dismiss the indictment is improper for what they are asking."
He noted that the law isn't clear on this issue.
In a written response to Butler's motion to dismiss Lykken's indictment, Oswald also cited a Minnesota Supreme Court case.
The court ruled that the due process clause doesn't give anyone, regardless of age, the fundamental right to be tried in juvenile court.
To "prevail on procedural due process violation," the court stated, "the claimant must show loss of a protectable property or liberty interest."
"We feel that the law is such that we might have conflicting interests," Oswald said. "But it does not mean that his (Lykken's) property interests do not take the place of the interests of the public, which are remedial."
Jensen likened the positions taken by the defense and the prosecution as "two ships passing in the night.
"I understand the defense argument to be one of jurisdiction and that the current statute doesn't apply. Isn't that a grounds for dismissal, assuming that it is correct that the court doesn't have jurisdiction?" Jensen asked Oswald.
"The grand jury has jurisdiction," Oswald replied, who added that the inherent power of the court would give it jurisdiction over a murder case even if the juvenile transfer statute in place at the time of Lykken's indictment in early July didn't exist.
If Butler's motion is successful, state prosecutors would have to refile the charges against Lykken in juvenile court. The state would be able to request that the case be waived to adult court.
Jensen told both attornies to fully research the juvenile court transfer issue as they prepare their documents for next week.
"I think you have to look beyond just that one particular statute," the judge said. "I would like to have both sides provide additional written arguments."
Butler told reporters after Monday's hearing that in 1971, regardless of the charge, all cases involving juveniles had to begin in juvenile court.
"Then the state could file a petition and state that because of the severity of the crime and other factors, this young man or woman should be dealt with in adult court."
In 1997, the state Legislature changed the law.
"It enumerated a class of offenses, including murder and a number of other serious crimes, that says the law presumes and directs the prosecution to charge a 16-year-old, for example, as an adult," Butler said. "The burden or the responsibility of convincing the court of moving the case back into the juvenile court is upon the person charged.
Butler noted that if he is eventually successful in having Lykken's indictment dismissed and that his case should proceed in juvenile court, there is nothing that would prohibit the state from petitioning the legal action to be moved to adult court.
"It's a jurisdictional question," Butler said. "Our position is that you can't just write a law and apply it backwards."
"I understand that Mr. Butler is doing what he needs
to do," Union County States Attorney Jerry Miller said after the hearing. "He's making the state jump through the hoops – it's a defense attorney's job to do that.
"In the end, the difference is if we follow the 1971 statute, we get a transfer hearing, and really, the only difference is it will be closed to the public," he said. "But, if we follow today's statutes, the defendant can request a transfer hearing back to juvenile court and it's not closed to the court."
If the court rules in favor of Lykken's motion to dismiss the state's indictment, "potentially we'd have to go back and get another indictment," Miller said. "And we'd have to bring all of that information back in front a new grand jury. That would be the burden on the state if the court rules that way."
He added that he feels confident that the Lykken case will be appropriately resolved in circuit court.