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Central Oregon Man Imprisoned Wrongfully

OPB | Oct. 30, 2007 9:28 a.m. | Updated: July 17, 2012 1:18 a.m. | Madras, OR

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By Ethan Lindsey

A year ago Wednesday, an 18-year-old Madras man found out the justice system doesn't always work as advertised.

Weeks earlier, he pled guilty to two felonies for a sexual relationship he had with his 14-year-old girlfriend, which began when he was 17.

He was required to register as a sex offender. But, unbeknownst to him, the district attorney had mistakenly prosecuted the case even though a grand jury had said not to. Central Oregon correspondent Ethan Lindsey has the story.


David Simmons was in high school in Madras when he started dating a 14-year-old female classmate. The sexual relationship continued for a year — meaning that when it ended, badly, Simmons was 18 — and the girl under 16.

Legally, that's third-degree rape.

Steve Richkind is an attorney representing Simmons. He says his client isn't a choirboy.

Steve Richkind: “Mister Simmons is young, and in my view immature. The girl involved here is also young and immature, but that doesn't make them sexual predators. That doesn't make them felons. They just had a relationship and it was a young and immature relationship.”

According to court documents, after the relationship ended, the girl's father found out about it. He called the cops.

It's here that the real story begins: the state's tragic mishandling of Simmons' case.

The cops arrested Simmons, and while sitting in jail he was charged with six sexual felonies, including rape and sodomy.

Those felony charges went to a grand jury, assigned to decide   whether Jefferson County should prosecute the crimes or not.

The grand jury, in a written paper, told the district attorney not to pursue the felony cases.

Steve Richkind:  “Meaning, he wasn't guilty of serious sexual felonies.”

At this point, Simmons should have been released.

But, the district attorney's office says it misread the verdict and sent the case on to a judge and jury.

Jennifer Kimble was Simmons' court-appointed public defender.

Jennifer Kimble: “Everytime someone touched that piece of paper they made a mistake with it. It's presumed that each of us will do our job in the case. That we will each double-check each others' work. That the district attorney when signing the case would have looked. That the  court would have looked at it, that I would have looked at it.”

Her mistake was not going back to that orginal grand jury paper - the one that would have revealed her client was off the hook.

Meanwhile, Simmons sat in jail, unable to post bail.

His arraignment would be the next chance for the mistake to be discovered.

A judge, the deputy district attorney, and the public defender were all in the courtroom on October 6th. Simmons was dialed in  an electronic teleconference.

But the court was unable to hear Simmons - and vice versa. Technical difficulties.

So Kimble told the court that her client would waive his right to a reading of the indictment. Another missed opportunity, says Richkind.

Steve Richkind: “In this instance, in the arraignment, where they would have had a chance to read the so-called indictment, never took place.”

Four days later, after a plea bargain between the district attorney's office and Kimble, Simmons admitted his guilt and agreed to be placed on a state sex offenders' list.

He was released from incarceration, and officially sentenced to jail time already served.

The local newspaper wrote up a little report on the incident, and the case was closed.

Except one of the grand jurors, who voted to abandon the case, read the newspaper story and called the court.

On October 30th, the case was back in front of the judge - this time over the failure of justice.

Peter Shepard is the deputy attorney general for the entire state.

Peter Shepard: “There were many opportunities in the process to notice that the error was being made. We gotta remember that this came to light was because the prosecutor did the right thing.”

Steve Richkind, the attorney for  Simmons, has a different take.

Steve Richkind: “Figures who hold offices of public confidence, were doing things which violated professional and judicial ethics.”

Here's where the case should have ended, Richkind says. Everyone involved agrees they messed up. The judge said, on the record, that it's like the whole thing “never happened.”

Instead, the district attorney refiled charges against Simmons, this time as misdemeanors.

And the County district attorney called in the state's big guns to help.

Deputy Attorney General Peter Shepard.

Peter Shepard: “We often get requests from DA's to assist them in cases where some aspect of their conduct might be called into question during the proceedings. And that's clearly an issue in this case.”

Richkind says the continued case violates the state's double jeopardy law. No one can be prosecuted twice for the same crime.

The state disputes the allegation.

Peter Shepard: “This is a very unique case. From that standpoint, this is more difficult because some of the legal issues that we've addresses successfully have been relatively novel.”

The Attorney General's office says it's the first time this has ever happened in Oregon.

Richkind says he doesn't believe that. He says the case just shows that if a judge or prosecutor messes up, the system covers up  it up.

He says the cover up, this time, comes at the expense of David Simmons.

Steve Richkind: “Because if they can get a conviction, they can say, 'Look, we put him in jail wrongfully, but he would have got 30 days anyways. That's the wrong motive to bring the second case.”

The Attorney General's office says that's hogwash.

And the State Supreme Court agreed with the attorney general.

Earlier this year, Richkind had petitioned to have the case thrown out.

But the Supreme Court justices said that since the misdemeanors and felonies were different crimes, they were legal and just.

Susan Rozelle, a visiting law professor at the University of Oregon, says the case is a complete tragedy. But agrees with the Supreme Court's ruling.

However, she says the ruling could actually help Simmons win a wrongful imprisonment lawsuit.

Susan Rozelle: “If these are in fact different charges, there's not a double jeopardy problem, different stuff going on here. The time that he would spend behind bars is different time so to speak.”

Meanwhile, Richkind says the case has had a profound affect on more lives than just Simmons.

Richkind says he is so dismayed by the judicial scandal that he plans to run for the state legislature next year.

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