Leroy Jemol Smith, 50, of Muskogee and Tulsa, will walk out of the Muskogee County Jail either today or tomorrow after a federal judge dismissed serial rape charges against him, saying the statute of limitations had expired. Smith’s alleged victims have not been notified by the federal prosecutors.
Smith had formerly been charged in Muskogee County District Court with the rapes, and the statute of limitations had not expired there, since cases using newly-discovered DNA technology were exempt from the state statute of limitations. But Smith is a small percentage Indian, so his case was moved to federal court, and that exemption does not apply there.
State courts had identified him as the alleged rapist of five women in Muskogee through the 1990s using DNA technology. The tests showed that there was a one-in-trillions chance that Smith was the rapist, to the exclusion of every other possible suspect on earth.
Several federal laws that would have extended the statute of limitations were enacted after the original statute of limitations had expired, Federal Judge Ronald A. White ruled today. Prosecutors tried to say the statute didn’t start until the McGirt decision conferred jurisdiction on the federal government this year, but White ruled that McGirt did not confer jurisdiction, so much as recognize its existence.
White ordered Smith released from custody immediately. Smith previously also escaped a murder charge in Tulsa due to a faulty time stamp on a surveillance camera that allegedly caught him in the act.
UPDATE 3:14 p.m.: Muskogee County District Attorney Orvil Loge, who did much of the legwork on getting Smith into the court system in the first place, just issued the following statement:
“I felt confident the Oklahoma Statute of Limitations would have survived the same argument, but the McGirt case prevented that issue being resolve in State Court.
“To the victims, I applaud your courage, determination and readiness to endure this fight.
“To law enforcement, investigators and DNA chemists, I thank you for all your hard work and commitment.”
UPDATE 3:18 p.m.: US Attorney Brian Kuester and Assistant US Attorney Sarah McAmis have filed an emergency motion to reconsider or motion to stay pending appeal on Smith’s case’s dismissal.
The prosecutors ask that the court reconsider its order for dismissal based on lack of compliance with victim notification procedures, noting that it may violate the Federal Crime Victims’ Rights Act, which ensures that crime victims have the right to be reasonably protected from the accused. Further, the victims should have been notified in a timely manner that the dismissal was possibly imminent.”
They further note that the victims have the right to be heard at any public proceeding involving the release of the suspect.
The prosecutors also gave notice of their intent to appeal White’s decision to the Tenth Circuit Court of Appeals and ask that Smith not be released “due to the violent nature of these crimes, the Defendant’s knowledge that he has now been identified through DNA, his access to information through the discovery provided in this case and his violent criminal history.”
The defendant, they argue, knows what his victims look like now, which “exponentially” increases the risk to the victims, and also creates a motivation for him to flee in case his dismissal is not affirmed on appeal.