>Mistaken imprisonment leads to court

   When additional charges were brought against a former Madras teenager, who had mistakenly served time in jail for felony rape and sodomy charges, attorney Steven Richkind, of Sandy, vowed to seek justice for his client.
   Last week, Richkind filed a complaint in the U.S. District Court in Portland alleging that Jefferson County, the state of Oregon, and nine individuals had violated and were continuing to violate the constitutional rights of David Lee Simmons, 19.
   The case dates back to September of 2006, when after a police investigation into the relationship between Simmons, then 18, and his 15-year-old girlfriend, potential charges of third-degree rape and third-degree sodomy were submitted to a grand jury.
   Although the grand jury checked the line marked "not true bill" -- meaning it didn't approve those charges -- no one noticed, and the case proceeded.
   Simmons agreed to plead guilty to the charges Oct. 10, 2006, and was sentenced to 30 days in jail. He had already been in custody for four days prior to sentencing.
   When the mistake was discovered, his attorney, Jennifer Kimble, informed him and noted that he might have a potential claim against her.
   Chief deputy district attorney Steve Leriche filed a motion with the court asking that the convictions and sentence be vacated. The motion was granted Nov. 1, 2006, and the convictions were declared "null and void."
   Less than a month later, on Nov. 30, 2006, the office of the district attorney, Peter Deuel, filed six new misdemeanor charges against Simmons's office -- four of contributing to the sexual delinquency of a minor and two of third-degree sexual abuse.
   The relationship was alleged to have begun in September of 2005, just a few months after the girl turned 14. Simmons is just over three years older than the girl.
   Deuel, who was out of town and unavailable for comment this week, said previously that it is not unusual for his office to consider lesser charges if the grand jury chooses not to indict on felony charges.
   However, Richkind is determined to stop that prosecution. "One part of the case is to stop the state court action, to get an injunction from any further prosecution," he explained.
   "The preliminary would halt the state court action until the federal court can determine whether this criminal prosecution should go forward, based on double jeopardy, due process and fundamental fairness," he said.
   At a hearing Nov. 26, 2007, on the state's motions to prevent the jury from hearing about the time Simmons spent in jail, Richkind was surprised to learn that prosecutors had additional evidence of Simmons' relationship with the former girlfriend.
   "The attorney's office said they had obtained DNA evidence indicating these two people had sex," he said.
   "I was really shocked, because the case had been going on for over a year at that point, and they hadn't produced any DNA evidence before that," he said, noting that he asked for a continuance.
   That trial is scheduled to get under way June 9.
   In his complaint, Richkind names Deuel, Leriche, Oregon Attorney General Hardy Myers, assistant attorneys general Stephanie Tuttle and Darin Tweedt, Kimble, Brendon Alexander, who represented Simmons after Kimble, Sheriff Jack Jones, Circuit Court Judge Gary S. Thompson, and the county.
   "As a result of the violations of the plaintiff's rights by defendants Deuel, Leriche, Myers, Tuttle and Tweedt, plaintiff has been unlawfully imprisoned for 34 days and has suffered severe emotional harm," Richkind stated in the complaint.
   Alleging that, "The institution and prosecution of the misdemeanor complaint was done intentionally, willfully, maliciously and with the intent to injure and harm plaintiff," Richkind said he is seeking punitive damages of $1 million.
   "For the prosecution to now assert that its actions against plaintiff in the former prosecution were a `legal nullity' is grossly unfair," he wrote.
   Noneconomic damages of $2.5 million are also sought.
   "I don't want to let Mr. Simmons go down when he was so screwed over by the people," Richkind said. "The grand jury said no, but nobody listened. Even when they finally listened, they tried to figure out how can we get around it."
   On Monday, according to Richkind, the parties and the court agreed to a briefing schedule and the date of the hearing on the preliminary injunction "to stop the state court from prosecuting Mr. Simmons a second time."
   The hearing will be held May 1, before Anna J. Brown, U.S. District Court judge in Portland.
   In that court, he said, "I'm facing the full power of the entire state of Oregon and the legion of litigators from the attorney general's office because they want to win, even though they already put him in jail and they did it illegally."
   "I'll be persistent even if I have to take it to the United States District Court," Richkind said. "I'm the only one who seems to recognize what the Constitution means. Double jeopardy means what it says."
   "They declared it never happened, but I disagree," he said. "It happened."
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