It’s not unheard of for a lawyer in court to have ingested a bit of demon liquor, but it’s usually not the prosecutor. Clarke County Attorney Michelle Rivera is an exception.
[O]n Oct. 18, before Simmerman’s plea hearing, a Clarke County sheriff’s deputy noticed Rivera in a courtroom. In a criminal complaint, the deputy would later write the attorney was “slurring her words and stumbling on her feet,” and noted that she “sat in a chair and swayed her head back and [forth], actions common with being intoxicated.”
The deputy asked to speak to Rivera in a small room by the courtroom. It was there that he detected the smell of alcohol on her. When she refused to take a breathalyzer test, the deputy arrested Rivera on suspicion of public intoxication.
This turned out to be a very bad day for Rivera, but a stroke of luck for Dennis Simmerman. Democrat Rivera was in the process of running for re-election, and getting arrested for being drunk in the courthouse is rarely a good platform. But as prosecutor, she had responsibilities beyond her personal issues, one of which involved Simmerman.
Thirteen months earlier, in September 2017, Dennis Simmerman had been charged with sexually abusing a 13-year-old boy. In an interview with investigators, Simmerman, then 22, allegedly admitted “to engaging in a sex act with a minor,” court records indicated. He also reportedly said he exchanged obscene photographs with the teen.
After much negotiation, along with unexplained periods of delay in the case, a plea deal was reached. On the day of Rivera’s arrested, Simmerman was set to take the plea. It didn’t happen.
Simmerman, however, never got the opportunity to enter his new plea, and the judge never got to hand down a sentence. Moments before the hearing began, Rivera, the prosecuting attorney, was arrested on suspicion of public intoxication inside the courthouse.
It would appear that this was a one-person office, Rivera or no one. Had there been assistants, or a deputy, or at least someone who could have subbed in when an emergency struck, Rivera’s arrest might have been only about Rivera. Instead, it was about Simmerman as well.
On Monday, Judge Marti Mertz ruled that the charges against Simmerman had to be dropped and that the defendant was to be released after 15 months in custody. The judge’s order cited Rivera’s performance in the case, according to Des Moines’s KCCI. The state cannot refile the charges against Simmerman.
Under Iowa Rule of Criminal Procedure 2.33(2)(c), a defendant must be brought to trial within one year of arraignment, absent an extension by the court for good cause. Judge Marti Mertz didn’t find Rivera’s being drunk, getting arrested, to constitute good cause.
“The county attorney’s unavailability at the last hearing was the finale following unexplained periods of inactivity and lack of responsiveness,” the judge wrote.
The subtext of this finding is that Rivera’s arrest was the last straw, but not the only straw in the delay of Simmerman’s case. Had she been diligent and “responsive” all along, perhaps the court might have reached a different conclusion, but Judge Mertz’s ruling appears to reflect the county attorney’s having created, or at least been complicit, in the delay that put the case on the edge of speedy trial. The arrest just pushed it over that edge.
Simmerman’s lawyer saw the opportunity and exploited it, as every criminal defense lawyer should.
“If the defendant is not put on trial (and) is not tried within a year, you have the potential to have that case dismissed and that’s what happened here,” Marshall Orsini, Simmerman’s attorney, told KCCI. “I was obviously happy and relieved.”
Under the circumstances, Orsini did exactly what any good lawyer would, and must, to zealously represent his client. It’s not his job to assist the prosecution, or be conflicted between his duty as defense counsel and the 13-year-old boy whom Simmerman was alleged to have molested. His job was to give his client every benefit of the law, and speedy trial time having elapsed, he made his motion.
But the obvious question is, assuming there was a crime and that Simmerman committed it and there was a victim of that crime, what about the victim? How is it possible that the prosecutor stumbles and the criminal walks free?
Taking advantage of prosecutorial errors is one of the most potent weapons of the defense. Like drunk lawyers, it’s not unheard of that a prosecutor neglects a case, fails to turn over something that she’s obliged to disclose, about which the defense is aware, or makes a really bad argument in support of their position on a motion. It happens, and it’s the job of the defense lawyer to use the error to his client’s advantage.
For the unduly passionate, this might seem terribly wrong, as their vision of “justice” was not done. But this is very much justice, as there are rules that apply before the state can put a person in a cage. The flipside of the irony, and critical to bear in mind, is that the defendant is being prosecuted for allegedly violating society’s rules. The county attorney, in pursuing her prosecution, should be no less responsible for adhering to the rules as well.
As for Michelle Rivera, not only did she lose the election with 29% of the vote, but her legal issues got uglier since blowing the Simmerman plea. A woman called police about a driver blowing through a stop sign and parking at the courthouse. The car was Rivera’s.
When the deputy approached Rivera, he allegedly could smell alcohol on her breath. He asked her whether she had been drinking, and Rivera said she had consumed alcohol the night before but that it could still be in her system. She declined a breathalyzer test but failed a field sobriety test, police said.
Authorities learned that Rivera had taken her daughter to day care before going to the courthouse. She was arrested on suspicion of operating while under the influence and child endangerment.
It certainly sounds as if Rivera has a drinking problem as well as a legal one,* and much as she may deserve concern as a person, it has no bearing on her fulfilling her duty as county attorney when it comes to those being prosecuted.
*This is reminiscent of the Keith Richards retort, “I’ve never had a problem with drugs. I’ve had a problem with the police.”