Sex abuse or not?

[pwd72s]

Ripped from the headlines...

Man jailed for sex abuse but never indicted sues Oregon officials
David Lee Simmons seeks $3.5 million for unjust prosecution and dismissal of new Jefferson County charges
FACTBOX
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Friday, March 28, 2008MATTHEW PREUSCH The Oregonian Staff
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.


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."

Matthew Preusch: 541-382-2006; preusch@bendbroadband.com

[Burnin' oil]

A bit of a blunder.

[legion]

Makes me think that a prosecutor can pretty much get a conviction no matter the facts.

[MRM]

Except he couldn't get the grand jury to convict. Looks like a case of grand jury nullification. He admitted to the crime - she was under age. The grand jury just said who cares? Who knows what a real jury would have done.

[stomachmonkey]

17 and 14.

3 years diff biologically, mentally/maturity a lot closer.

I don't see a sex offender here.

[sammyg2]

Yes it was sexual abuse. yes he deserved to get prosecuted. Yes he knew it and he pled guilty to it. No he doesn't deserve squat due to a freaking technicality.
Man I hate lawyers like that who will say or do anything. Don't they have any conscience, any sense of right or wrong at all?

[David]

Sounds like this guy's getting Nifonged.

[pwd72s]

Originally Posted by stomachmonkey

17 and 14.

3 years diff biologically, mentally/maturity a lot closer.

I don't see a sex offender here.

Kind of my thoughts...probably why the Grand Jury said no.

[NICKG]

and this is why sex laws are not working...

[svandamme]

if she went along for a full year, till she was 15, then that's not rape now is it...
girls mature sooner then boys, some boys are really slow at it
i can understand the parents aren't happy about it, but frankly , if it takes em a year to notice, they should probably sue themselves for poor parenting

and if they would like to exaggerate like they did with this kid, why not child abuse and negligence?

[kstar]

FWIW, "Age of Consent" around the world, from Wikipedia:

Australia: varies between states and territories, usually between 16 and 18, with some exceptions for younger people in some states.

Austria: gay 18, otherwise 14

Belgium: 16

Brazil: 18, but 14 and older only prosecutable after complaint by child

Canada: gay 18, otherwise 14

China: 14

Croatia: 14 or 18

Finland: homosexual 18, heterosexual 16

France: 15

Germany: 16 if perpetrator is over 21 (only prosecuted after complaint) or a teacher, otherwise 14

Greece: 17 for sodomy, otherwise 14

Hong Kong: gay 21, lesbian unknown, heterosexual females 16, heterosexual males 18

Hungary: homosexual 18, heterosexual 14

Iceland: 14

Ireland: 17

Israel: 16

Italy: 14

Japan: 13

Mexico: 12, but 18 under some circumstances

Netherlands: 16, but 12 and older only prosecutable after complaint by child or parents or the "Council for the Protection of Children"

New Zealand: 16

Norway: 16

Poland: 15

Romania: homosexual illegal for all ages, heterosexual 14

Russia: either 14 or 16

South Africa: homosexual 19, heterosexual 16

Spain: 13

Sweden: 15

Switzerland: 16

United Kingdom: 16 in Great Britain, but 17 in Northern Ireland

United States: varies from state to state, usually between 16 and 18; some states forbid homosexual acts entirely. A federal law forbids crossing state lines or international borders with the intent of having sex with a person who is under 16 and at least 4 years younger than the perpetrator.

Source: http://nostalgia.wikipedia.org/wiki/Age_of_consent

[NICKG]

well we are "puritans" here right...suprising that sex is even legal here in some states

[Nathans_Dad]

He broke the law. Don't like the law? Go talk to your state representative. Yes, he committed statutory rape according to Oregon law. Yes he should be prosecuted.

Statutory rape laws are in effect to prevent sexual exploitation of minors. You may have an issue with the age 18, but then where do you choose to draw the line? Someone has to pick an age, 19? 20? Then you will have cases of 19 year olds and 17 year olds...same difference.

[varmint]

Originally Posted by stomachmonkey

17 and 14.

3 years diff biologically, mentally/maturity a lot closer.

I don't see a sex offender here.

i see a horny moron, who should get beaten up by her dad. but not a sex offender. and the girl should probably have been sent off to a boarding school.

in my mind the prosecutors would be charged with something like false inprisonment, or something along those lines, and have to serve time themselves. this screw up is unforgivable.

[Dueller]

Oregon age of consent is 16. However, if they are 14 or older AND their age difference is three years or less, it is not a crime. Appears the boy was a few days past three years older.

C'mon...these two were High School freshman/junior or sophomore/senior. If you guys don't think HS kids are having sex, you are sadly mistaken. I can see where the grand jury refused to indict.

His original defense lawyer needs to have his butt kicked.

[the]

Originally Posted by Dueller

If you guys don't think HS kids are having sex, you are sadly mistaken.

It's all this pervert's fault!

[Dueller]

Originally Posted by the

It's all this pervert's fault!

Just spewed diet coke all over my lap top.

[nostatic]

the question of law isn't whether it was sexual abuse or not.

He plead guilty when he shouldn't have, then served his sentence. Now he is being tried again for essentially the same crimes. That is BS.

Change the crime from sexual abuse to something else and some of you guys would be howling about double jeopardy and unfair courts...

His original defense attorney was asleep at the wheel...

[KaptKaos]

I'm no lawyer, but to me the mistake was when his lawyer agreed to make it a "nullity" whatever the fuch that is. Like it never happened. So no court, no record, whatever.... But, it left open the door for them to try him again.

Whatever deal that lawyer struck when they found out that there was no indictment should have included some compensatory and punitive damages as well as a guarantee that there would be no further prosecution.

Instead he said "ok, it's a do-over", smiled and walked away. Idjits.

[pwd72s]

I liked the line about not being able to unring a bell...

(edit) You know...there is the letter of the law, then there is the intent of the law.
I'm no lawyer, but isn't that why we convene grand juries?

Another Oregon thing came to mind...a 36 year old Mayor of Portland. Years after he became Governor, "deciding" to not run for a 2nd term after his wife left him, and only under pressure from the press, he confessed to having had an "affair" (The term used by our State's largest newspaper.) with their then 14 year old baby sitter.

He skated because of statute of limitations laws of the time. Of course, his days as an Oregon political power broker are over...

Guess I'm turning leftie here...but I don't see a 17 year old and a 14 year old as "sexual abuse". I DO see a politically powerful Mayor and a 14 year old as "Sex abuse" of the highest order.