“The time is always right to do what is right” Martin Luther King, Jr.
It has been 36 years since Governor George S. Mickelson proclaimed a “year of reconciliation” to improve relations between Native Americans and non-Native citizens of South Dakota. The pendulum has swung in the opposite direction since then, especially during Kristi Noem’s time as Governor, when acrimony prevailed.
One example of this antagonism is the discussion about Nick Tilsen. Tilsen participated in a protest in support of indigenous persons in 2020 when President Trump visited Mount Rushmore. Numerous criminal charges, including felonies, were filed against Tilsen and he was facing 15+ years in prison. Eventually, the charges were dropped.
More recently, Tilsen faced several charges arising out of a 2022 incident in which he was accused of aggravated assault of a law enforcement officer. His highly publicized criminal trial in January 2026 resulted in a hung jury, leading to the declaration of a mistrial. These charges have since been dropped by the State, but this was not a foregone conclusion.
A hung jury is not a final adjudication. It is not an exoneration or acquittal of the Defendant. Rather, it simply means the jury was unable to reach a verdict. When this happens, the State has the option to retry the case or dismiss it – a decision that lies squarely in the discretion of the prosecutor.
Several factors come into play when that decision is pondered. A textbook approach is to consider: (1) whether there is a co-defendant, which implicates equality and parity considerations; (2) the strength of the evidence against the defendant; (3) the defendant’s participation in the events under scrutiny; (4) whether there is a parallel prosecution being undertaken elsewhere; (5) the defendant’s willingness to plead guilty; (6) the resources required to proceed again; (7) impact of this decision on related matters; and, (8) prosecutorial priorities.
In looking at the particular facts in the Tilsen prosecution, these factors weigh heavily in support of dismissal: (1) This is a sole defendant case; (2) much of the evidence against the Defendant is on video; (3) the Defendant’s participation in these events resulted in no physical contact with the officer and resulted in no injury (according to evidence reviewed by this writer); (4) these charges arose out of an isolated event which occurred in a very short span of time, with no parallel prosecutions in state or federal court; (5) the Defendant was facing 20 + years in prison and did and does not appear interested in pleading guilty; (6) expenditure of resources is unknown to this writer, but it is generally known that the cost of taking a case to trial is high; (7) there are no related matters, no personal injuries, and no property damage; (8) given the high violent crime rate in Rapid City, including homicides, and the need to muster prosecutorial resources for other serious cases, dismissal of this non-violent case seems prudent.
It could be argued that a decision not to retry Tilsen is consistent with principles centuries old. “The legitimate powers of government extend to such acts only as are injurious to others.” Thomas Jefferson, Notes on the State of Virginia (1785). This was later articulated as the Harm Principle by John Stuart Mill in his essay, On Liberty (1859): “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
Something else that the prosecutor might have considered is this. Key evidence is a video recording. A retrial would involve a presentation of the same evidence that the first jury saw. There is no indication that there is any new evidence. A second trial likely would be mostly a repeat of the first. The jury was divided, having taken an informal vote of 10-2 for acquittal.
Nick Tilsen’s attorney John Murphy, speaking truth to power, asserts that this case should never have been prosecuted. Regardless, is not Tilsen’s three years of legal jeopardy, with the attendant emotional and financial burdens, punishment enough? The State’s decision not to retry this case is the right one.
Note: In regard to the preparation of this week’s column, the author would like to thank attorneys Sarah Baron Houy, Tim Rice and John Murphy for their assistance and input.
Anyone desiring to communicate with the Author, may do so by sending an e-mail to the author at
rogermbaron@gmail.com .
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