While the criminal justice system is mediocre at dealing with cases that follow the usual path, it is absolutely horrible when a case comes along where things go systemically wrong.  Via Ken at Popehat, who revisits his childhood as an AUSA by remembering Sol Wachtler’s admonition about indicting a ham sandwich, comes this incredible story of a little screw up by the Jefferson County, Oregon District Attorney.

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.

But that grand jury declined to indict Simmons.  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.

The problem, of course, is that the idea of a grand jury returning a “no true bill” is so shocking that it never dawned on anybody that it could possibly happen. Now this would just be an apocryphal tale of making sure the indictment was in proper order, but for the fact that the defendant pleaded guilty and everybody walked away.  By a twist of fate, though, someone happened to notice.

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.

Consequently, the court vacated the conviction for the unindicted crimes.  But that wasn’t the end of it.  The defendant was charged with misdemeanors for the same crimes, thus avoiding the sandwich of rotten ham.

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.

As Ken pleasantly points out, Youssarian had nothing on this catch-22.  Despite having been subjected to prosecution and being imprisoned, the court’s conclusion was that the lack of an indictment precluded its jurisdiction, thus rendering the entirety a nullity and providing the prosecution with a clean slate to go after the defendant as if nothing ever happened.  After all, what’s a little prison between friends?

The decision to permit the defendant to be subject to prosecution after being previously prosecuted under a defective instrument smacks of absurdity, and leaves one to wonder whether the attack on double jeopardy was somehow lacking or whether there is some quirk in Oregon law that could use a fix.  That the court assumed jurisdiction, even though it may not lawfully have possessed it, should have been more than sufficient to invoke double jeopardy.  This was a matter of harsh reality, though reality is often trumped by legal fiction.  And the fact that the Oregon Supreme Court refused review speaks volumes.

The lesson of this inane case is rather hard to explain.  The law presumes regularity, meaning that things happen the way that they are supposed to happen.  Procedural laws are written with normalcy in mind, and often fail to provide a mechanism to deal with unanticipated problems.  Lawmakers, of course, can’t anticipate all the screwy things that can happen in the course of legal proceedings, invariably leaving us with a mess without a solution.

This is where some of the broader legal concepts, such as due process and equal protection, usually come into play to save the day.  This case, apparently, fell through the legal cracks.