Leroy Jemol Smith is one step closer to being released from custody based on his membership in a Native American tribe.
Smith is being held without bond in the Muskogee County/City Detention Facility, accused of raping four women in Muskogee between 1993 and 1995. It was ruled that one of the original five victims is Native American and won’t be part of the charges.
Special District Judge Robin Adair ruled on Monday that whether or not Smith, 51, is a member of a recognized tribe is a decision for the 10th Circuit Court of Appeals, not the trial court.
“I think the judge made a right ruling based on the law that we provided in the motion,” said M.J. Denman, co-counsel for the defense.
The defense argued that the court had already ruled “the court lacked jurisdiction” based on Smith’s Native American status.
“The state had a responsibility if it disagreed to file a notice of intent to appeal within 10 days,” Denman said. “During that time, Mr. Smith was being federally prosecuted — those 10 days passed, no notice was filed. On the 11th day, his federal public defender filed a motion to dismiss on statute of limitations violations.”
Smith had been previously charged in Muskogee County District Court with five counts of first-degree rape by force or fear. But, after a decision was rendered in the case of Jimcy McGirt by the U.S. Supreme Court, Smith’s case was dismissed in August in Muskogee County and forwarded to the United States District Court for the Eastern District of Oklahoma for prosecution. The state lacks jurisdiction to prosecute crimes by or against Native Americans inside those historic boundaries. Under the McGirt ruling, the state lacks jurisdiction to prosecute crimes by or against Native Americans inside historic boundaries.
The case went to federal court, but U.S. District Judge Ronald White dismissed the criminal case against Smith, based on the expiration of the statute of limitations in federal court.
Muskogee County District Attorney Orvil Loge re-filed based on the fact that the incidents occurred before Smith was a member of a federally recognized tribe; therefore he isn’t covered by the McGirt Supreme Court ruling.
With the decision being sent back to the circuit court, the clock is ticking once again for Loge.
“I have 10 days to decide to appeal the decision by the court,” Loge said.
Tammy Templeton is the daughter of Pamela Clark, a victim who died in 2015. Templeton leaned over the railing upon leaving the courtroom and told Smith, “We’re not done yet.”
“We’re extremely disappointed with the ruling,” she said. “It’s been hard on the family and for the other women involved, and victims. We’re waiting for the district attorney and what his next step will be.
“We’re still fighting, we’re not going to give it up. My mother was a fighter and she would not give up if she was here, so we’re going to fight the fight for her.”