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Case of trysts, twists lands in local court.

Byline: Karen McCowan The Register-Guard

One of the most bizarre cases in recent state history is now in the hands of a Lane County Circuit Court judge.

Criminal proceedings against David Lee Simmons began more than two years ago in Jefferson County, when Simmons was 18. Court officials there have since agreed to withdraw from the case over a botched 2006 prosecution and conviction, however, so Lane County Circuit Judge Karsten Rasmussen agreed to hear the case in his Eugene courtroom.

Simmons' attorney, Steven Richkind, has asked Rasmussen to dismiss the state of Oregon's second criminal prosecution of Simmons for having sex with his girlfriend when she was younger than the age of consent.

After brief oral arguments Tuesday morning, Rasmussen told Richkind and an assistant state attorney general now prosecuting the case that he will rule early next year on Simmons' motion to dismiss the charges.

In court documents, Richkind argued that six misdemeanor charges of third-degree sexual abuse filed against Simmons in April should be dismissed because his first prosecution for the same alleged criminal episodes was illegal and "conducted in such manner as to shock the conscience" and "violate a universal sense of justice."

Richkind's dramatic rhetoric was inspired by what was by all accounts a dramatic chain of events back in 2006.

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.

Simmons, who should have been released from jail and had his charges dismissed, instead accepted a plea deal. On the advice of his attorney, he pleaded guilty to one count each of third-degree rape and third-degree sodomy in exchange for his temporary release from jail before serving the remaining days on his 30-day sentence.

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. But he also told Simmons that the prosecutor's office planned to file new, misdemeanor charges against him for the same sexual activity, and that the court had appointed another attorney, Brandon Alexander, to represent him.

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.

Meanwhile, he also sought relief for Simmons in federal court, seeking an injunction against the new state prosecution and filing a civil lawsuit seeking $3.5 million for Simmons' wrongful conviction and imprisonment in 2007.

Richkind, in asking Rasmussen to dismiss the misdemeanor charges, claims the two prosecutions have violated Simmons' due process rights and that the new prosecution exacerbated the harm from the first one.

Richkind also charged that the state special prosecutors who took over the case have "vindictively" attempted to retaliate against Simmons for asserting his constitutional rights.

Richkind expressed disappointment Tuesday that Rasmussen rejected his request to compel the Jefferson County officials to testify - and face his cross-examination.

Simmons, who now lives in Texas, listened in on the court proceeding by telephone, but did not comment.

Deputy Attorney General Pete Shepherd, the spokesman for the prosecution, said he was happy with Rasmussen's decision to "get to the merits of the case."

Shepherd said it is not unusual for the attorney general's office to handle cases on behalf of county prosecutors, but he acknowledged that the facts of this case are highly unusual.

"What's different about this case is that everybody involved (in the first prosecution) didn't read the charging instrument, and the point at which the error was discovered, after he served his sentence."
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Title Annotation:Courts; A man again faces sex charges after wrongfully being charged the first time
Publication:The Register-Guard (Eugene, OR)
Date:Dec 17, 2008
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