Alonzo
03-29-2008, 04:22 AM
BEND -- The state attorney general and several Jefferson County officials and lawyers are facing a $3.5 million lawsuit accusing them of unjustly prosecuting a former Oregon man.
The suit, filed last week in U.S. District Court in Portland, stems from the unusual criminal case against David Lee Simmons, 19, on sex-abuse charges in the central Oregon county.
In 2006, Simmons was sent to jail for 30 days and ordered to register as a sex offender after pleading guilty to felony charges of rape and sodomy.
But upon Simmons' release, it was discovered that he was never indicted -- a fact his lawyer, the district attorney and the judge overlooked during his prosecution and sentencing. The grand jury that heard Simmons' case found there was insufficient evidence against him and marked the indictment "not a true bill."
The fact that nobody seemed to notice the jury's decision, and that Simmons served time, "is just extraordinary," said Margaret Paris, dean of the University of Oregon law school.
The charges stemmed from a relationship Simmons began with a 14-year-old girl when he was 17 and continued after he turned 18 and she turned 15. Her parents complained to authorities, and in September 2006 he was arrested on suspicion of rape and sodomy.
When the grand jury met the next week and declined to indict Simmons, everyone seemed to miss this crucial detail, and his prosecution continued.
That October, he pleaded guilty to one count each of third-degree rape and third-degree sodomy and was sentenced to a month in jail and five years' probation. He also was ordered to register as a sex offender.
At sentencing, Simmons apologized to the girl's family, saying, "I would just like to say that I am sorry and that I know what I did and what I was doing was wrong," according to a court transcript.
Ex-juror spots story
When he was released from jail later that month, a member of the grand jury that reviewed his case noticed a news story about it and contacted the district attorney's office, questioning how Simmons had been prosecuted without being indicted.
That same day, the prosecutor, defense attorney and Jefferson County Circuit Judge George Neilson met to discuss the situation.
"Mr. Simmons, this is an experience I've never had before in 27 years," the judge said. Simmons' defense attorney agreed with the prosecutor's motion to vacate the case, and Neilson ruled it a "legal nullity."
"It will be treated as if it never happened in the sense of the law," the judge said, according to court documents. He added a warning to Simmons that he could face future prosecution.
Shortly after, the Jefferson County prosecutor filed new charges against Simmons: four counts of contributing to the delinquency of a minor and two third-degree sexual abuse counts, all misdemeanors. That trial is scheduled for early June in Jefferson County.
"My thought at the time would be, they would apologize to him and pay him some money," said Laura Graser, a Portland criminal defense lawyer familiar with the case. "I can't believe they're prosecuting him again."
Suit names AG, others
Oregon Attorney General Hardy Myers' office took over the case last summer after the county prosecutor bowed out, and the case has been in litigation since.
Last week, Simmons' lawyer, Steven Richkind of Sandy, filed a federal lawsuit against Myers, Jefferson County District Attorney Peter Deuel and others involved in the case. The suit also names Jefferson County, Sheriff Jack Jones, two state prosecutors, Simmons' two previous defense attorneys and Circuit Judge Gary Thompson, who is presiding over the current misdemeanor trial.
The first hearing on the civil suit is scheduled for May in a Portland federal court
"It seeks two things: One is to stop the state prosecution based on the concepts of 'double jeopardy,' due process and fundamental fairness," Richkind said. The other is $3.5 million in economic and punitive damages for Simmons, who now lives in Copperas Cove, Texas, Richkind said.
Richkind's argument is based on the constitutional protections against being prosecuted twice on the same charges, or "double jeopardy."
Under state law, prosecutors can still file misdemeanor charges if a grand jury fails to indict a person on felony charges, so long as the grand jury doesn't also consider and reject the misdemeanor charges at the same time, said Richard Wolf, a Portland defense attorney who successfully argued a double jeopardy homicide case at the 9th U.S. Circuit Court of Appeals.
But "as far as a judgment being entered and time served," Wolf said, "that would probably prohibit you from prosecuting again."
The state has yet to file a response to the lawsuit, said Stephanie Soden, a spokeswoman for Myers. "The attorney general believes it's a case filed in court, and the merits of the case will be determined by the courts."
But last summer, in an argument to the state Supreme Court countering Simmons' petition to have his case dismissed, the attorney general's office argued that he wasn't being subjected to double jeopardy because his original case was a "legal nullity" and his defense attorney agreed to vacate his conviction.
When the grand jury signed the original indictment "not a true bill," it essentially dismissed the charges, no matter what happened afterward, the state argued.
Paris, a criminal defense attorney before becoming the UO law school dean, said Simmons' case appears to be a unique test of double jeopardy protections. "This young man has been put through jeopardy. I don't know that they can unring that bell.
"This is very, very unusual. It's really an extraordinary and fascinating case."
http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1206674712256620.xml&coll=7&thispage=3
The suit, filed last week in U.S. District Court in Portland, stems from the unusual criminal case against David Lee Simmons, 19, on sex-abuse charges in the central Oregon county.
In 2006, Simmons was sent to jail for 30 days and ordered to register as a sex offender after pleading guilty to felony charges of rape and sodomy.
But upon Simmons' release, it was discovered that he was never indicted -- a fact his lawyer, the district attorney and the judge overlooked during his prosecution and sentencing. The grand jury that heard Simmons' case found there was insufficient evidence against him and marked the indictment "not a true bill."
The fact that nobody seemed to notice the jury's decision, and that Simmons served time, "is just extraordinary," said Margaret Paris, dean of the University of Oregon law school.
The charges stemmed from a relationship Simmons began with a 14-year-old girl when he was 17 and continued after he turned 18 and she turned 15. Her parents complained to authorities, and in September 2006 he was arrested on suspicion of rape and sodomy.
When the grand jury met the next week and declined to indict Simmons, everyone seemed to miss this crucial detail, and his prosecution continued.
That October, he pleaded guilty to one count each of third-degree rape and third-degree sodomy and was sentenced to a month in jail and five years' probation. He also was ordered to register as a sex offender.
At sentencing, Simmons apologized to the girl's family, saying, "I would just like to say that I am sorry and that I know what I did and what I was doing was wrong," according to a court transcript.
Ex-juror spots story
When he was released from jail later that month, a member of the grand jury that reviewed his case noticed a news story about it and contacted the district attorney's office, questioning how Simmons had been prosecuted without being indicted.
That same day, the prosecutor, defense attorney and Jefferson County Circuit Judge George Neilson met to discuss the situation.
"Mr. Simmons, this is an experience I've never had before in 27 years," the judge said. Simmons' defense attorney agreed with the prosecutor's motion to vacate the case, and Neilson ruled it a "legal nullity."
"It will be treated as if it never happened in the sense of the law," the judge said, according to court documents. He added a warning to Simmons that he could face future prosecution.
Shortly after, the Jefferson County prosecutor filed new charges against Simmons: four counts of contributing to the delinquency of a minor and two third-degree sexual abuse counts, all misdemeanors. That trial is scheduled for early June in Jefferson County.
"My thought at the time would be, they would apologize to him and pay him some money," said Laura Graser, a Portland criminal defense lawyer familiar with the case. "I can't believe they're prosecuting him again."
Suit names AG, others
Oregon Attorney General Hardy Myers' office took over the case last summer after the county prosecutor bowed out, and the case has been in litigation since.
Last week, Simmons' lawyer, Steven Richkind of Sandy, filed a federal lawsuit against Myers, Jefferson County District Attorney Peter Deuel and others involved in the case. The suit also names Jefferson County, Sheriff Jack Jones, two state prosecutors, Simmons' two previous defense attorneys and Circuit Judge Gary Thompson, who is presiding over the current misdemeanor trial.
The first hearing on the civil suit is scheduled for May in a Portland federal court
"It seeks two things: One is to stop the state prosecution based on the concepts of 'double jeopardy,' due process and fundamental fairness," Richkind said. The other is $3.5 million in economic and punitive damages for Simmons, who now lives in Copperas Cove, Texas, Richkind said.
Richkind's argument is based on the constitutional protections against being prosecuted twice on the same charges, or "double jeopardy."
Under state law, prosecutors can still file misdemeanor charges if a grand jury fails to indict a person on felony charges, so long as the grand jury doesn't also consider and reject the misdemeanor charges at the same time, said Richard Wolf, a Portland defense attorney who successfully argued a double jeopardy homicide case at the 9th U.S. Circuit Court of Appeals.
But "as far as a judgment being entered and time served," Wolf said, "that would probably prohibit you from prosecuting again."
The state has yet to file a response to the lawsuit, said Stephanie Soden, a spokeswoman for Myers. "The attorney general believes it's a case filed in court, and the merits of the case will be determined by the courts."
But last summer, in an argument to the state Supreme Court countering Simmons' petition to have his case dismissed, the attorney general's office argued that he wasn't being subjected to double jeopardy because his original case was a "legal nullity" and his defense attorney agreed to vacate his conviction.
When the grand jury signed the original indictment "not a true bill," it essentially dismissed the charges, no matter what happened afterward, the state argued.
Paris, a criminal defense attorney before becoming the UO law school dean, said Simmons' case appears to be a unique test of double jeopardy protections. "This young man has been put through jeopardy. I don't know that they can unring that bell.
"This is very, very unusual. It's really an extraordinary and fascinating case."
http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/1206674712256620.xml&coll=7&thispage=3