ABERDEEN, S.D. — Charging members of the U.S. Marshals Service with behavior tantamount to kidnapping prisoners, U.S. District Judge Charles Kornmann charged three marshals with contempt of court and obstructing justice after an hour-long verbal tongue-lashing from the bench.
Marshal service Chief of Staff John Kilgallon, South Dakota Marshal Daniel C. Mosteller, and deputy South Dakota Marshal Stephen Houghtaling are set to go to trial on September 13 over their roles in overseeing — or allowing — a deputy to remove prisoners from Judge Kornmann's courtroom following a spat over vaccination status of the marshal.
"When you move someone against their will, that's kidnapping," said Kornmann. "I don't care who you are."
The judge then ordered acting U.S. Attorney for South Dakota Dennis R. Holmes to decide by this Friday, June 18 at 5 p.m. whether his office will prosecute the three federal law enforcement employees.
The proceedings ensued one month after a deputy marshal absconded with three criminal defendants from the federal courthouse in Aberdeen after she'd refused to answer Judge Kornmann's question of whether she'd been vaccinated or not against COVID-19. After Kornmann ordered her out of the courtroom, citing danger to the criminal defendants, the deputy and other marshals vacated the courthouse with three defendants in their custody, delaying that day and the next's scheduled hearings.
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"Nothing like this has ever been done in this country," bellowed Kornmann on Monday, June 14 at the morning hearing. "This was such a most outrageous thing to do."
It's not immediately clear whether Judge Kornmann will preside over the contempt hearing, as he noted he'd not been "personally disrespected" by the marshals' words, though he also referred to the deputy's behavior as "contemptuous." The two attorneys dispatched from the Department of Justice in Washington, D.C. — Joshua Gardner and Leah Taylor — said they could say little, as they worked for DOJ's civil, not criminal, division. Kornmann asked if either had ever prosecuted a criminal case before, and they both said no.
The judge originally signaled he'd press civil charges of contempt but then backtracked and applied criminal after Gardner and Taylor argued civil charges were inappropriate in this matter.
Still, even if criminal counsel, the two DOJ attorneys may've had little to add on Monday, as Kornmann, a Clinton-appointee and judge in Aberdeen for nearly 30 years, held-forth for the greater part of the hour, only briefly asking the attorneys whether they thought the marshals' facilities for holding defendants were adequate.
"I'm not at liberty to say," replied Taylor.
"No, I suppose you're not," replied Kornmann.
While Kornmann called Kilgallon, Mosteller, and Houghtaling "good, public servants," he noted that "even good people make bad decisions." The three, who could face fines, or even jail time in a criminal trial, sat silently, only occasionally taking down notes.
The scene was peculiar, as marshal operated a security post at the doorway to the courthouse while three of their own received notice of criminal prosecutions. According to a court filing from Kornmann last month, which contained email exchanges between the judge and USMS prior to and after the May 10 and 11 hearings, approximately only half of the marshals in South Dakota had been fully vaccinated as of last month.
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In an April letter to Kornmann, Mosteller wrote USMS staff would not be "providing their respective vaccination status to the Court."
On Monday, upon clearance into the courthouse, a marshal told spectators, "If you're vaccinated, it's your decision whether you want to wear a mask or not."
The defense counsel and marshals charged all wore masks. Judge Kornmann and his staff did not. Rules issued by U.S. District of South Dakota Chief Judge Roberto Lange says persons in federal courthouses must wear a mask if not fully vaccinated.
In wide-ranging remarks that veered from invoking a decision by a Houston hospital — upheld by a federal judge — to fire employees who didn't get vaccinated to the Biden administration's heretofore decision to not yet appoint a U.S. District Attorney for the state.
The judge railed against what he called "political nonsense" that citizens had absolute "freedom" to abstain from vaccinations, even during deadly pandemics, listing off, for example, the requirement that children be vaccinated against certain communicable diseases before attending public school.
"We're talking about science," said Kornmann. "If you are refusing to take the vaccine... let me know."
DOJ's counsel said the three defendants were "in the process" of securing criminal defense attorneys. It is yet uncertain whether those attorneys will be paid for by the defendants or not. Judge Kornman offered them a way out by apologizing, admitting they were wrong, and paying $5,000 to an admitting attorneys fund for the state.
"You have dug yourself into a deep hole," said Kornmann, who appeared visibly angry at points and almost at a loss for words during the proceeding, adding their continued defense suggested the defendants had "brought their own shovels" to Monday's hearing.
