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Man charged in 1990s rapes freed due to McGirt reservation ruling; statute of limitations passed in 2000, judge agrees

Man charged in 1990s rapes freed due to McGirt reservation ruling; statute of limitations passed in 2000, judge agrees

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A man who was connected by recent DNA tests to several Muskogee rape cases from the 1990s may not have to face prosecution after a federal court decision ordering his release this week.

U.S. prosecutors have filed an emergency order to get Leroy Jemol Smith, 50, back in custody to await trial.

Smith was arrested in June on five complaints of sexual assault after a forensic genetic genealogical analysis was completed earlier this year on DNA samples from evidence of those crimes.

State charges were dropped the following month and refiled in federal court after a Supreme Court decision that established a lack of state jurisdiction to prosecute major crimes involving Native Americans in Indian Country. Smith's Native heritage, a requisite of either the defendant or alleged victim in the implications of McGirt v. Oklahoma, has not been detailed in court documents. 

U.S. District Judge Ronald White on Thursday ordered Smith released from incarceration because the alleged crimes fall outside the established federal statute of limitations. 

Muskogee County District Attorney Orvil Loge said Smith was freed Thursday.

Smith's defense had argued that, once federal jurisdiction was established, the statute of limitations passed in October 2000. Prosecutors argued that DNA technology and subsequent laws to adjust for its application in criminal law essentially reset the clock on the statute of limitations.

White disagreed based on the timing of those laws being enacted years after Smith's statute of limitations had run out, saying those laws "(do) not purport to revive prosecutions for offenses with limitation periods that had already expired when the statute was enacted.”

Loge expressed confidence that the rationale would not have prevented Smith from being prosecuted in Oklahoma, "but the McGirt case prevented that issue being resolved in State Court."

“To the victims, I applaud your courage, determination and readiness to endure this fight," he said in a statement. "To law enforcement, investigators and DNA chemists, I thank you for all your hard work and commitment.”

Loge had appeared with Oklahoma State Bureau of Investigation Director Ricky Adams and Muskogee Police Chief Johnny Teehee to announce Smith's arrest on five counts of first-degree rape by force or fear.

Parabon NanoLabs had helped investigators using DNA evidence to narrow the field to Smith's family and, subsequently, Smith, the Muskogee Phoenix reported. A match came from Smith's DNA collected during a 2005 double-homicide in Tulsa; he was later acquitted, but the DNA profile matched evidence from the Muskogee rapes.

During that June 10 news conference, Adams expressed emotion for the victims, noting "they won't have to look over their shoulder anymore."

Assistant U.S. Attorney Sarah McAmis said the four alleged victims, who court documents said had all been connected to Smith, were not made aware of his release prior to Thursday.

In an emergency filing for the judge to reconsider, McAmis and U.S. Attorney Brian J. Kuester argue that White wrongly denied the parties a hearing to argue over the defense motion to dismiss.

"The victims had a right to notice, a right to attend that hearing, and a right to make their opinions known at that hearing," the prosecutors said in the filing.

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