A defendant charged with child abuse is scheduled to go to trial for the second time Monday, Jan. 4. Patrick White Face was convicted in 2013, but that conviction was overturned by the South Dakota Supreme Court.
In the first trial, the state charged White Face with one count, a continuous act, although he stood accused of injuring his infant daughter on two separate occasions.
The Supreme Court said it was possible that some jurors thought White Face had committed one act and some thought he committed the other, but there is no proof the twelve jurors were unanimous on at least one act.
In this second trial, White Face is charged with two counts of child abuse. In an interview earlier this year, Deputy State's Attorney Josh Hendrickson said that move clarifies things for the jury.
"It's our opinion that we can still try that as one count and give them a unanimity instruction, but we chose to do it as two counts," Hendrickson said in May. "We believe it will be easier for the jury to distinguish from each count and be clear and avoid any more appellate issues on that point, should we get a conviction at the trial the second time around."
The defense asked Seventh Circuit Judge Wally Eklund for two separate trials, one on each count, but Eklund denied that motion. Public Defender Tom Diggins argued that it's prejudicial to try the two separate incidents at the same trial, because the injuries are not related.
The trial is scheduled to run all week.
