Leroy Jemol Smith is legally a free man after a McAlester judge ruled that trying him for a string of four rapes in Muskogee in the 1990s is akin to double jeopardy, and thus unconstitutional.
Smith, 51, was allegedly matched to five rapes in Muskogee last year by DNA evidence that had previously been unaccessible technologically. Though Oklahoma’s statute of limitations had already expired, an exemption for newly-accessible DNA evidence allowed prosecution to go forward. Smith, however, had become a member of an Indian tribe in 2003 with 1/168th quantum, and filed a McGirt motion to dismiss for lack of state jurisdiction. That motion was granted by Judge Robin Adair. The case then went to federal court, which has jurisdiction over crimes involving Natives.
Judge Ron White dismissed the case because the federal government has no exemption on its statute of limitations for DNA evidence.
Muskogee County DA Orvil Loge filed a new state case against Smith, alleging that since Smith was not a member of a tribe until long after the rapes, he did not qualify for McGirt.
Pittsburg County Judge Tim Mills ruled yesterday that Smith cannot be prosecuted by the state for the rapes because it amounted to res judicata - double jeopardy.
The state could still prosecute Smith if a new victim with accompanying DNA evidence turns up, but short of that, Smith, who also walked away from a Tulsa murder charge on a technicality, is a free man.