Popehat Forum

You May, On Occasion, Encounter a Particularly Cunning Ham Sandwich

by Ken  Dec 22, 2008

In the roughly six years I worked as a federal prosecutor, I never had a grand jury refuse my request to indict. Moreover, in that entire time — in which the feds sought between 5 and 10 thousand indictments in Los Angeles — I know of only one occasion on which a grand jury no-billed a case. (In that case, the INS — as it was still called — was trying to arrest a young man for deportation, and his mother released the family dog on the agents. The agents shot the dog. The grand jury concluded this chain of events did not merit prosecution for the mother, apparently.) My experience is not uncommon. It is notoriously easy to persuade grand juries that there is probable cause to indict. Hence the cliche referenced in the title of my post.

When a grand jury does no-bill a prosecutor, it’s often dreadfully inconvenient. Usually one has to get approval from some officious higher-up (a Deputy Attorney General, in the case of the feds, I think) to re-present the case.

Wouldn’t it be much more convenient to simply pretend that the grand jury had properly grasped the urgency of the government’s case, and proceed as if the grand jury had returned a true bill?

Why, yes. Yes, it would. Take it away, Jefferson County, Oregon District Attorney’s Office.

David Lee Simmons was accused of various breaches of Oregon law for allegedly having sex with his girlfriend when she was 14 and he 17. The grand jury no-billed it. Did that matter? No.

In a nutshell, the Jefferson County district attorney’s office prosecuted Simmons that fall on four counts of felony third-degree rape and two counts of felony sodomy for sex with his girlfriend dating back to September 2005, when he was 17 and she was 14. Prosecutors in Madras filed the charges after receiving a complaint from the girl’s parents, and took the case to a Jefferson County grand jury for indictment.

But that grand jury declined to indict Simmons. A copy of the Oct. 5, 2006, indictment clearly shows that Grand Jury Foreman James Greer checked a box labeled “Not a True Bill” on the document, rather than the “True Bill” box designating the jury’s authorization of the criminal charges.

Apparently, however, nobody read that section of the indictment.

“Not the prosecutor, even though he signed the document 1 inch below the line that said ‘Not a True Bill,’ ” Richkind said outside the courtroom Tuesday. “Not the court clerk, who filed it. Not the judge, not Mr. Simmons’ defense attorney.”

Instead, all proceeded as if the 18-year-old had been indicted.

Note that everyone is giving the prosecution the benefit of the doubt and believing that they missed the no-bill. Given how much of an event a no-bill generally is, generating buzz among the jurors and court reporters and grand jury assistants, I find this rather difficult to believe.

It’s undisputed, though, that Simmons’ lawyer didn’t catch it. But whether that reflects badly upon him depends upon procedure in that court. In federal court, and in many state courts I have seen, there’s only one true-bill copy of an indictment with the grand jury foreperson’s signature. The defense attorney, and everyone else, gets a copy of the indictment without signatures. One presumes, as a defense attorney, that the government would not go as far as to prosecute a case that was specifically rejected by the grand jury. That would be ridiculous — obstruction of justice at least, possibly all sorts of other violations of criminal law and professional ethics. After reading about this, I’m not sure I can keep making that assumption.

Simmons pled guilty. 999 out of 1000 times, that would have been it — a man convicted of something for which he was not indicted.

Simmons might have spent the rest of his life with two wrongful felony convictions on his record. But Greer, the jury foreman, happened to read a newspaper account of the plea deal. Shocked, he confronted prosecutor Steven Leriche, who in turn contacted Simmons’ then-defense attorney Jennifer Kimble.

On Oct. 31, 2006, Jefferson County Circuit Judge George Nielson responded by vacating the conviction.

Simmons hired new counsel, who argued that Simmons could not properly be prosecuted twice for the same thing. But Mr. Simmons was in for a surprise. He was charged again for the same acts, this time with misdemeanors.

“That’s some catch, that Catch-22,” Yossarian observed.
“It’s the best there is,” Doc Daneeka agreed.

Wait, wrong story.

Instead, Simmons retained Richkind, who filed a motion for dismissal of the charges on the grounds that they constituted double jeopardy. But another judge for the Oregon Circuit Court serving Jefferson and Crook counties denied that request. Judge Gary Thompson agreed with Assistant Attorney General Darin Tweed that the second prosecution was legal because the first one occurred in a court that lacked jurisdiction over Simmons — if only because the Jefferson County Grand Jury had not indicted him.

Richkind appealed that decision to the Oregon Supreme Court, which declined to take the case.

In other words, even though he was prosecuted and went to jail the first time, precisely because the District Attorney prosecuted without a valid indictment, he could be prosecuted for the same thing a second time.

There may be other flaws in Simmons’ double jeopardy analysis. But that point of law smells — what’s the word? — assy.

Fortunately, Simmons is a proud American, and therefore will not stand content to be a victim. And how do we Americans throw off the yoke of victimhood?

The lawyer for a man who pleaded guilty to a crime for which he was never indicted has filed a $3.5 million lawsuit against Attorney General Hardy Myers and several Jefferson County officials.