by Mark Wilson
Seventeen year old David Simmons and his fourteen year old girlfriend began a sexual relationship which continued after they turned 18 and 15, respectively. The relationship ended, however, on September 27, 2006 when the girl’s angry parents had Simmons arrested on suspicion of rape and sodomy.
On October 5, 2006, Jefferson County, Oregon deputy district attorney Steve Leriche took the case before a grand jury, seeking to charge Simmons with six felony sex crimes, carrying substantial prison time. Finding insufficient evidence of a criminal offense, the grand jury refused to indict Simmons. Grand Jury Foreman James Green checked “Not a True Bill” on the indictment and returned it to Leriche.
Leriche, presiding Judge Daniel Ahern and Simmons’s defense attorney, Jennifer Kimble, all failed to notice that the grand jury refused to indict Simmons. Such a failure “is just extraordinary,” said University of Oregon law school dean Margaret Paris.
Five days after the grand jury’s decision, on October 10, 2006, Simmons pleaded guilty to two charges – third degree rape and third degree sodomy. Nine days later, on October 29, 2006, Simmons was sentenced by Judge George Neilson, who also missed the grand jury’s refusal to indict.
At sentencing, Simmons apologized to his former girlfriend’s family and was ordered to serve 30 days in jail, five years on probation and register as a sex offender. That would have been the end of the story if Grand Jury Foreman Green had not stumbled onto a story about Simmons’s sentence in the local newspaper.
Shocked, Green called Leriche on October 31, 2006. “Didn’t you read the indictment?” Green asked. “We didn’t indict the kid.” By then, Simmons had served his entire jail term, but Leriche and Kimble ran frantically to Judge Neilson for damage control. Kimble joined the prosecution’s motion to vacate the conviction and Neilson quickly granted it.
“Mr. Simmons, this is an experience I’ve never had before in 27 years,” said Neilson.
“What transpired here in essence is a nullity. It will be treated as if it never happened in the sense of the law.” Still, Neilson warned Simmons that he could be prosecuted again.
Simmons’s attorney admitted her role in the blunder. “I assumed – and that was my error in this case – that because it had gone through the district attorney, and he’d signed it, and gone through the judge, that someone would have looked at it, or the grand jury would have mentioned, ‘By the way, we didn’t indict this person,’” said Kimble. “But in the young man’s case, none of that happened.”
Recognizing the egregious nature of the error, which causes Simmons to spend additional days in jail when he should have been released on October 5, 2006, Kimble alerted Simmons that he may have potential legal claims against her, the prosecutor, the judge and the county jail.
“My thought at the time would be, they would apologize to him and pay him some money,” said longtime Portland criminal defense attorney Laura Graser. Believing, however, that the best defense is an aggressive offense, the State went after Simmons like a rabid pitbull.
On November 30, 2006, the prosecution filed six new charges against Simmons: four counts of contributing to the sexual delinquency of a minor and two counts of third-degree sexual abuse. Leriche admitted that he filed only misdemeanor charges to avoid “being barred by a grand jury not-true bill.”
“I can’t believe they prosecuted him again,” said Graser. Simmons’s new defense attorney, Steven Richkind, says the new charges are a blatant attempt to avoid responsibility for “how badly they screwed it up.” He notes that “this was a failure on the part of the prosecutor, the judge and the defense attorney. It was a failure to do the most fundamental thing, to read the charging instrument.”
The new charges are nothing more than an underhanded tactical move, argued Richkind. “Once he’s convicted, their argument in the civil case will be, ‘He spent 30 days in jail, ladies and gentlemen, he has no damages because he would have served 30 days anyway,” Richkind suggests. “They’re using the criminal proceeding to minimize their liability in a civil action. Every citizen in the State should be outraged.”
On June 1, 2007, Richkind asked the Oregon Supreme Court to stop the new prosecution but the Court refused to hear the case on July 31, 2007. Still, Richkind insists the new charges subject Simmons to double jeopardy. “They punished him once by putting him in jail for 30 days. The constitution says you punish him once and you’re done.”
Oregon Attorney General Hardy Meyers and his staff were apparently reading a different constitution. In a 19-page June 2007 opinion, Meyers argued that since all the previous proceedings were a legal nullity, in the absence of a legitimate indictment, Simmons hadn’t really been convicted and was, therefore, vulnerable to face charges again.
Adding insult to injury, the State blames Simmons for the mess. “Although he blames the prosecutor and the trial court for failing to notice that the indictment was not a true bill, the record show that neither he not his attorney noticed that defect either,” wrote Meyers. “Thus, he is equally responsible for the fallout.”
Apparently, the issue became a bit too hot for Leriche and the other county prosecutors. The County asked the State Attorney General’s office to take over the Simmons prosecution, admitted Deputy Attorney General Peter Shepherd. Asked if the State is attempting to minimize its liability, Shepherd declared, “That’s not true.” Yet, he concedes that prosecutors are anxious to convict Simmons.
“There has been no conviction of record,” notes Shepherd. “One function of criminal law is to affix responsibility in an authoritative way. That hasn’t happened yet in this proceeding.” The irony of that statement offends Richkind. “That’s the part that’s most disturbing,” he says. “When the ones who point the fingers have the fingers pointed at them, they duck their responsibility. They can’t live by their own standards. And that goes to the highest level, to the Oregon attorney general and the state Supreme Court.”
On March 20, 2008, Richkind filed a federal civil rights action on behalf of Simmons, seeking to stop the new prosecution – on double jeopardy, “fundamental fairness” and due process grounds – and seeking $3.5 million in economic and punitive damages.
While the Attorney General scoffed at the suit, many others insisted that Simmons should prevail. “As far as a judgment being entered and time served, that would probably prohibit you from prosecuting again,” suggested Portland defense attorney Richard Wolf.
“This young man has been put through jeopardy. I don’t know that they can unring that bell,” agrees Dean Paris. “This is very, very unusual. It’s really an extraordinary and fascinating case.”
But the State ultimately did unring that bell. In December 2008, a federal judge dismissed the suit, though Richkind vowed to appeal to the Ninth Circuit Court of Appeals.
On December 16, 2008, Richkind was again in state court arguing that the new prosecution should be dismissed. “How can the government do this to him and say it’s a do-over?” he asked Lane County Circuit Judge Karsten H. Rasmussen. Richkind argued that the new case is vindictive and retaliatory and that officials filed it to cover their tracks in the first case. Assistant Attorney General Darrin E. Tweedt disagreed, however, claiming that there was no proof of retaliation, especially given that the new charges were less severe than the original ones.
Rasmussn took the matter under advisement, stating that he would decide whether to dismiss the case in early January 2009. On January 5, 2009, however, Richkind and prosecutors submitted a plea deal to Rasmussen. The agreement calls for Simmons, who is now living in Texas, to plead guilty to harassment but not serve more jail time, probation or be required to register as a sex offender. The State also agreed not to block any attempt by Simmons to have his record of arrest or conviction expunged if he does not have contact with the victim or incur any felony or misdemeanor convictions for three years.
“It was a good outcome for my client,” said Richkind, noting that it will finally be over after 2 ½ years. The State just had to have the last word. “Basically, our position is there was no evidence of vindictiveness or retaliatory prosecution here,” said Attorney General Spokesman Tony Green. “In fact, it was a simple mistake and the evidence supported that a crime did occur.” Translation: “Whew!”
Source: The Oregonian.
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