Lost evidence leaves little chance of exonerating inmate

By Mark Walker
Argus Leader

SIOUX FALLS, S.D. (AP) — A shotgun blast pierced the night fog.
Ruth Hilgenberg’s husband fell into her lap as their car veered into a ditch along Interstate 90.

Her first thought was heart attack, until the sight of blood sent her into a panic, the Argus Leader reported.

It was just before midnight on May 12, 1990, near the Montrose exit, about 20 miles west of Sioux Falls.

As Ruth Hilgenberg waved down help from a trucker, Tanja Ishol and her friends were pulling into Humbolt to call 911. A separate shotgun blast had shattered their car window, injuring one of them. Ishol was terrified but safe — and she caught a glimpse of the driver and the vehicle that flashed its high beams just before the shot.

Ishol’s description led investigators to a Mitchell man named Stacy Larson, who was convicted of second-degree murder and has spent the last 25 years in prison.

A decade and a half into Larson’s sentence, his case caught the attention of a group of attorneys and law students in the Twin Cities. The Innocence Project of Min­ne­sota began researching Larson’s conviction and concluded that he could not have fired the shot that killed Ronald Hilgenberg.

The problem for Larson and those who believe he was wrongfully convicted is that the evidence that might have exonerated him has long since been destroyed. And even if it still existed, it might not be enough to reopen his case under South Dakota law.


Eugene Taylor, who was McCook County sheriff at the time, said in an interview this month that a tip from Larson’s brother is what initially put him on the suspect list. Larson’s brother told investigators that Stacy’s vehicle matched the description in news reports and that he knew his brother had been in the area of the shootings that night.

Ishol, who told deputies she had been drinking the night of the shooting, was asked to review a photo line-up three days later that included Larson. After first singling out another subject based on his hair, Ishol was instructed to focus on faces alone and picked Larson in her second attempt.

“Every effort was made to make sure we had the right person,” Taylor said.

The same day of the photo line-up, Larson showed up at the Mitchell Police Department with a friend to ask about a lost wallet. Officers there were aware Larson was a suspect in the McCook County case and began to question him about unsolved burglaries before moving onto the interstate shootings.

Six hours after Larson walked into the police station, he found himself hooked up to a polygraph and accused of murder. An officer banged on a table and told Larson it would be in his best interest to cooperate, according to court records.

When an officer told Larson he failed the lie-detector test, Larson threw up on the interview table and began shaking uncontrollably.


Twenty five years later, in an interview at the South Dakota State Penitentiary in Sioux Falls, Larson recalled the panic that set in at that moment. He remembers lying on a bathroom floor at the Mitchell police station, sobbing and wondering what had just happened.

“I was scared as hell,” said Larson, now a bald, burly man in his mid-40s.

Today, he speaks about his case in a relaxed demeanor. Sitting in a beige jumpsuit in the prison’s family visitation area, he walks through problems with the state’s timeline, points out the lack of evidence against him, and insists he is innocent.

But the jury heard enough to convict him. On Nov. 21, 1990, Larson was found guilty of second-degree murder and later sentenced to life in prison without parole.

Two friends allegedly in the car with him when the shots were fired were also indicted, but charges were dropped against one co-defendant, while another was acquitted.

The state’s case at trial was based largely on testimony from Ishol, along with one of Larson’s friends who testified that Larson had “joked” about shooting at both vehicles.

“We shot at the four girls because they wouldn’t put out and the old man because he wouldn’t let us pass,” the friend quoted Larson as saying during the trial.

The prosecutor alleged Larson and his friends were frustrated about not finding a marijuana dealer in Sioux Falls that evening, and that he took out his frustration by firing a shotgun from his vehicle on the drive back home to Mitchell.

Attorneys for the state also introduced evidence from a burglary that evening. A shotgun was stolen from a Hartford home. Larson was never charged with the burglary, but prosecutors introduced fingerprints, shoe prints, tire tracks and ammunition remains found at that crime scene in an apparent attempt to link him to a murder weapon.

Investigators never found the shotgun.


Larson’s attorneys — and more recently, researchers from the Innocence Project — argued the state’s case didn’t add up.

A sales receipt at a Mitchell convenience store recorded Larson buying beer and gas at 12:02 a.m. Hilgenberg was shot 43 miles east of Mitchell around 11:40 p.m., meaning Larson and his friends would have had to be traveling well over 100 mph.

John Schlimgen, the attorney who represented Larson during his appeal, argued the receipt time doesn’t consider the several minutes it would have taken Larson to exit the freeway, pump gas and bring his beer to the register. Under the time line most generous to Larson, he might have arrived at the store seven minutes after the killing.

“This feat would have required the defendant to drive an average speed of somewhere between 95 and 370 mph, depending on what the accurate time was within the varying time ranges,” Schlimgen wrote.

Schlimgen, who is now a Minnehaha County judge, declined to comment for this story.

A police officer took Larson’s car for a ride as part of the investigation and determined it could reach 110 mph, which prosecutors used as evidence that Larson could have killed Hilgenberg near Montrose and bought beer in Mitchell half an hour later.

The South Dakota Supreme Court upheld Larson’s conviction, though it acknowledged he “may not have received a perfect trial.”


The Innocence Project of Minnesota began looking into Larson’s case in 2006 and spent seven years researching it. The organization is part of a national network of attorneys who work to exonerate wrongfully convicted inmates, often by applying modern DNA testing to evidence that predated the technology.

When the Innocence Project began looking into Larson’s case, one of its first steps was requesting access to evidence in hopes of finding DNA it could use to exonerate him.
The timeline from there gets murky.

According to prison correspondence between Larson and the Innocence Project, a law student working on the case called the McCook County courthouse and was told by a clerk that there were “five big boxes of stuff.” Later, when the student called again the same clerk told him the evidence had been destroyed.

A McCook County judge in August 2005 authorized the destruction of evidence from Larson’s case, but it’s unclear when — or even if — the material was actually destroyed. McCook County Clerk Cheryl Miller said the county has no record of when or how the evidence was disposed, and the state’s attorney at the time of the case, Roger Gerlach, said he had no recollection and that he shredded all of his files when he went into private practice in 2012.

In a January 2007 letter to Larson, a student attorney with the Innocence Project, Jessica Birken, explained the group’s frustration with McCook County officials.

“It seems clear, however, that the evidence was destroyed after a letter for preservation of evidence was sent,” Birken wrote.

South Dakota does not have a law outlining how long evidence should be kept. It’s up to local courts and law enforcement to decide how long to hang on to evidence. In
Larson’s case a full decade had passed since his last appeal when a local judge signed the order allowing sheriff’s deputies to destroy the evidence.

“Generally this order is common practice when the appeal has long since lapsed,” South Dakota Attorney General Marty Jackley said.

After learning the evidence was gone, Innocence Project volunteers drove from the Twin Cities to McCook County to photocopy everything left in Larson’s file. The group continued to research Larson’s case for years, seeking out witnesses and parsing the state’s timeline for flaws that might be enough to reopen the case.

In 2013, the Innocence Project shelved Larson’s case even though three different lawyers who reviewed it concluded that he is innocent.

“We did not close this case because we believe Mr. Larson is guilty — as we do in many other cases — but rather because we no longer have the resources to investigate a case like this in another state,” Julie Jonas, legal director for the Innocence Project of Minnesota, wrote in July 2015 letter to South Dakota’s attorney general.


Within the last year, Jackley assigned an investigator and an assistant attorney general to review Larson’s case. Jackley acknowledged “credibility” issues with how evidence and testimony was introduced during Larson’s trial, but he said there wasn’t any new evidence compelling enough to potentially overturn decisions by the jury or state Supreme Court.

“I know (the Innocence Project) made the comment about resources, but I’ll indicate that their inaction speaks for itself,” Jackley said.

Under South Dakota law, a person convicted of a crime is entitled to a hearing if new evidence emerges that could have affected the jury’s decision. The law exists because of legislation Jackley introduced in 2012. In Larson’s case, the attorney general says his office was unable to find any new evidence.

Mike Butler, a Sioux Falls defense attorney, is one of the few lawyers in the state to successfully overturn a wrongful conviction. In 2014, he used the new state law to win a hearing for a client serving time for vehicular homicide. New witnesses came forward to testify that his client was not behind the wheel.

But even when new evidence doesn’t emerge, the state constitution gives a legal basis for reopening cases when there is sufficient doubt about the verdict, Butler argued.
“We took a position that the South Dakota constitution ... would not tolerate incarceration of an innocent person,” Butler said.

In December, Larson sent a handwritten letter to McCook County court officials pleading for a new attorney to represent him and review his case. A judge agreed and assigned a Beresford attorney, Jason Rumpca, to see whether there is anything in Larson’s case that should go before a judge.

Rumpca is now beginning the same scavenger hunt that Innocence Project volunteers went through a decade ago.

“We have looked and checked with all of the agencies for both Stacy (and a co-defendant) and there doesn’t appear to be anything we can find at this point,” Rumpca said.

Not everyone is interested in helping Larson. When the Innocence Project contacted Michael Unke, an attorney who represented one of Larson’s co-defendants, Unke refused to help the group.

“I think he’s guilty,” Unke said.

Larson hasn’t lost hope.

“I want my freedom. Every day you spend in prison is a day you don’t get back,” Larson said. “I want people to know I’m innocent of this crime.”