PURSUIT OF JUSTICE

2-8-2010 Oregon:

A lawyer fights for a young man he says was wrongly prosecuted

A small-town Oregon lawyer remains so outraged over what prosecutors did to a Central Oregon teenager in 2006 that he intends to go all the way to the U.S. Supreme Court to seek redress.

For now, University of Oregon Law School graduate Steve Richkind, aided by several current students at the school, is asking the 9th Circuit U.S. Court of Appeals to allow him to press a $3.5 million civil rights lawsuit against state prosecutors on behalf of Richard Lee Simmons.

Simmons is now 21 and living in Texas with his 30-year-old partner and their year-old child. But as an 18-year-old resident of tiny Antelope, Ore., he was prosecuted, convicted and jailed on felony sexual abuse charges arising from a consensual relationship with his high school girlfriend, who was three years younger.

In the eyes of some, such charges are themselves an injustice. Activists across the country are pushing to exempt such cases from felony status.

But for Simmons, getting charged, jailed and publicly labeled a sex offender for such behavior was particularly egregious, Richkind says, because a Jefferson County grand jury had decided it was not a crime.

“Grossest negligence and incompetence”

The panel of citizens, after hearing the state’s evidence against Simmons, returned a “no true bill” rather than an indictment. But, in an error chronicled in publications from Oregon newspapers to the American Bar Association Journal, nobody read the grand jury’s verdict. Everyone from the prosecutor to the judge to Simmons’ own defense attorney assumed he had been indicted — and proceeded accordingly.

After a grand juror alerted them to the error, Simmons’ suit alleges, the judge, prosecutor and defense attorney privately agreed on this remedy: The judge would declare the felony convictions “a legal nullity,” and the district attorney’s office would file new, misdemeanor sex charges against Simmons.

To botch the first prosecution and follow it with a second over the same conduct constitutes double jeopardy, “shocks the conscience” and “violates a universal sense of justice,” Richkind argues.

Public critics of Simmons’ prosecutions have ranged from newspaper editorial writers to former Oregon U.S. Attorney Charles Turner, who calls the bungled first prosecution an example of “the grossest negligence and incompetence” and the subsequent charges “a terrible exercise of prosecutorial discretion.”

The state Department of Justice is defending the six county and state prosecutors who oversaw one or both of the prosecutions. State lawyers have until Feb. 24 to file a response to Richkind’s 9th Circuit appeals brief.

Tony Green, spokesman for Oregon Attorney General John Kroger, declined last week to discuss details.

“Our general principle is that we do our talking in court,” he said. “What is perhaps obvious is that we have been successful at every level at which this case has been heard.”

A Jefferson County Circuit Court judge and the Oregon Supreme Court already rejected a state court civil suit making the same claims. Likewise, a U.S. District Court judge in Portland dismissed Simmons’ suit in the first federal court level. Richkind is pressing ahead.

First federal appeal

It’s a daunting task, according to constitutional scholars and experienced appellate lawyers — particularly for a solo practitioner with no federal court experience.

After graduating from the UO Law School in 1987, Richkind set up a law practice in the same town at the foot of Mount Hood where he graduated from high school. In Sandy, he has specialized in family law, mediation and criminal defense, but took on Simmons’ case at the request of a law school classmate in Jefferson County.

“Prior to this case, I had never filed any action in federal district court or the court of appeals,” he said. “It was a leap of courage for me, because I was so sure that the Constitution was trampled on by what happened to Mr. Simmons.”

Richkind has a steep hill to climb, said Rankin Johnson, a Portland criminal appellate lawyer.

“But this case is also an outrageous enough injustice that it looks like it’s worth fighting over,” he said.

Richkind looked every bit the small-town lawyer when he appeared before Lane County Circuit Judge Karsten Rasmussen on Simmons’ state criminal case early last year. (Rasmussen brokered a settlement of that case after Jefferson County judges withdrew because of their court’s role in the first prosecution.)

In contrast to the polished manner and sleek suits of most litigators, Richkind had an outraged air and the slightly rumpled look of an absent-minded professor.

The latter attribute torpedoed his 2008 bid for an Oregon House seat: He had no candidate statement in the Oregon Voter’s Pamphlet because he missed the submission deadline.

“Vindictive sham” alleged

In a brief filed with the 9th Circuit late last year, Richkind argues that Jefferson County officials violated Simmons’ federal due process rights by prosecuting and jailing him “illegally” the first time despite the grand jury’s decision not to indict him.

The officials further violated those rights, Richkind alleges, by “conspiring” to go forward with a second prosecution for the sexual contact, this time filing misdemeanor charges.

The suit calls the latter prosecution a “vindictive sham” designed to “justify and cover up the illegal first prosecution,” thus protecting the state from embarrassment and liability.

And it alleges that the officials violated Simmons’ state and U.S. Fifth Amendment protections against double jeopardy in the second prosecution for misdemeanor offenses that were “lesser and included” versions of the charges in the first case.

He urges the 9th Circuit to overrule a federal district court judge’s dismissal of the case. In that decision, U.S. District Court Judge Michael Mosman granted a state Department of Justice motion to dismiss the case.

Department of Justice attorney Leonard Williamson had argued that Simmons was not subjected to double jeopardy because the first prosecution became a “void act” and because the charges filed in the second case were different and arose from different incidents. U.S. courts have upheld the right of prosecutors to file misdemeanor charges after a grand jury “not true bill” on felony crime arising from the same episode, he wrote.

Williamson noted that the 9th Circuit has previously upheld prosecutorial immunity even when a prosecutor knowingly used false testimony at trial.

That precedent reflects the “fundamental and important” public interest in prosecutors being free to act on behalf of the public without fear of legal reprisal.

Johnson, the Portland appellate defense lawyer, considers that a flaw in our legal system.

He doesn’t advocate prosecutors being held personally responsible, but said wrongfully prosecuted defendants deserve some kind of government compensation.

“If a government official makes a mistake and a citizen suffers as a result, the citizen should come out ahead,” he said.

Defense attorney settled

The suit now targets six officials: Jefferson County District Attorney Peter Deuel and Deputy District Attorney Steven Leriche; state Attorney General John Kroger and assistant attorneys general Stephanie Tuttle and Darin Tweedt.

Jennifer Kimble, Simmons’ court-appointed attorney in the first prosecution, originally was a defendant, as well, but was removed from the case after reaching a confidential settlement with Simmons.

But Kimble admitted publicly that “none of us did our job” soon after officials learned that there had been no grand jury indictment in the first case. She also gave Simmons written notice that he might have a claim against her and others for their failure to read the jury’s verdict, Richkind said.

Turner, Oregon’s U.S. attorney from 1982 to 1993, has publicly criticized both prosecutions of Simmons, but particularly the latter.

“When the grand jury speaks, that’s the end of the matter, as far as I’m concerned,” he said.

Turner said he does not buy the argument that the offenses in the second prosecution were different incidents.

“They may have picked different days of the month,” he said, “but I know (Jefferson County prosecutors) didn’t just present the evidence of the days in question to the jury, they presented the whole ball of wax. To me, the grand jury was speaking and saying this is not a matter worthy of prosecution. If they’d presented the incidents from the second case to the grand jury, they would have had another no true bill.”

Law students pitch in

Among Richkind’s arguments to the 9th Circuit is a claim that prosecutorial immunity does not apply to such nondiscretionary tasks as the duty to read a grand jury indictment.

That argument could raise an interesting legal question, Lewis and Clark Law School professor Susan Mandiberg said. The criminal law and federal court professor agreed to speak generally about the immunity defense.

“Prosecutors do have absolute immunity for prosecutorial decisions, but not for administrative decisions,” she said. “The question is, where is the line drawn?”

That legal question also interested Andrew Kraushaar, a third-year UO law student who hopes to practice criminal or international law. Last May, he volunteered to help Richkind with the appeal.

With fellow law students Evan Wickersham and Ryan Olds, Kraushaar helped Richkind research, prepare, and electronically file the 9th Circuit brief.

“You think about the U.S. as a bastion of Constitutional democracy, but this poor, socio-economically disadvantaged kid who doesn’t really know his rights just gets kind of beat around by the system,” Kraushaar said.

He added that he could understand the human error that led prosecutor, judge and defense attorney to overlook the “no true bill.”

“The second prosecution is where it gets egregious, when all the players get together behind the scenes and agree to declare a judicial nullity,” he said. “But it did happen. David Lee Simmons served 30 days in jail and also was labeled a sex offender.” ..Source.. Karen McCowan