RAPID CITY, S.D. — A man set to be tried for a 2019 death in Pine Ridge will not have his indictment thrown out over allegations prosecutors waited too long to try him, says a federal judge in Rapid City.

U.S. District Judge Jeffrey Viken said the defendant, Colton Bagola, and his own public defender are as much to blame for his trial's delayed scheduling as prosecutors are.

"The problem with defendant's argument is that in this complex case ... defense counsel did not promptly move for a new scheduling order for his case after the Jan. 29, 2021, order denying the co-defendant's suppression motion," wrote Viken, in an order denying the motion to throw out charges under the Speedy Trial Act of 1974 in a filing on Thursday, July 22.

Bagola was arrested just days before Christmas 2019 on suspicion in the fatal shooting of Sloane Bull Bear at a housing unit in Pine Ridge, S.D. A grand jury later indicted Bagola on first-degree murder charges, but a trial was suspended as a co-defendant, Jamie Ann Richards, fought to have evidence suppressed showing that she'd helped Bagola escape federal authorities by driving him from Pine Ridge to Rapid City.

While a magistrate considered Richards' motion, and Bagola was in jail, the Pennington County Jail saw a surge of COVID-19 cases in the fall. For 10 days after testing positive for COVID-19, Bagola was put in isolation, says a court filing. Ultimately, in December, Richards plead guilty to one charge of aiding Bagola and sentenced to three years probation.

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Under the Speedy Trial Act, Bagola is guaranteed a trial within 70 days of indictment or arraignment. While his attorney, federal public defender Thomas Higgins, acknowledged in a court filing that the clock was ostensibly paused during the summer and fall months while Richards' case proceeded, he argued that the clock re-started again in January, following the court's acceptance of Richards' plea agreement.

But Viken noted that in a late April email with a judicial assistant, Higgins expressed an openness — even a preference — to his client's trial beginning no earlier than September. Given a six-week trial set to begin in the court in September, an assistant to Viken scheduled Bagola's five-day trial for December.

In his order last week, Viken said such scheduling was entirely appropriate.

"Had defense counsel raised the point that no new scheduling order had been entered after Ms. Richards' suppression motion was resolved, the court would have certainly worked with both attorneys, identified an available trial date and the defendant would have waived his speedy trial rights to the dates established in the new order," Viken wrote.

The delayed start date will only give Higgins "more time" to prepare for this "complex murder case," Viken said.