Three federal judges dismissed felony grand jury indictments against nine defendants in Wyoming, citing misconduct by interim U.S. Attorney Darin Smith that the judges said “could have prejudiced” the grand jury’s proceedings. The judges dismissed indictments that covered cases ranging from felony firearms possession and drug offenses to child pornography charges, according to the order. The defendants’ prosecutions did not end immediately, however: the judges stayed the dismissal through Wednesday or until Smith does not contest the ruling, and they issued the dismissal “without prejudice.”
In the dismissal order, the judges described how Smith’s statements affected the grand jury in ways they said went beyond isolated comments. They said the misconduct “began with some of the first words spoken to the grand jury” and “continued to penetrate the proceedings” through off-the-record conversations during the breaks between indictments.
The defense attorneys had argued the misconduct poisoned the grand jury that is supposed to operate without bias and serve as the “sole evaluator of evidence.” The AP report said defense motions sought dismissals on the grounds that Smith improperly told the grand jury the defendants were “bad guys,” stated they were “murderers,” and said deliberations “won’t take long.” The judges’ order, as described by AP, said the statements were inflammatory and inappropriate, and that there was a “genuine risk” the grand jury may have absorbed the message when it later deliberated.
The judges also addressed concerns about what they viewed as Smith injecting a personal assessment of the evidence into the grand jury process. They wrote that Smith’s comments about the expected length of deliberations amounted to giving “his subjective evaluation of the strength of the evidence,” which the judges said was not his role, AP reported. The court described the timing comment as potentially shaping how long jurors thought they should deliberate.
In another part of the ruling, the judges cited conduct during a break in proceedings, when Smith handed out his business cards and invited grand jurors to contact him. The judges wrote that the conduct was “concerning on two fronts,” AP reported, including that a prosecutor should not solicit private communication with grand jurors or attempt to “buddy up” to them.
The judges concluded that the cumulative effect of what they called “many known instances of misconduct” left them with “grave doubt” that the grand jury’s decision to indict was free from substantial influence of the violations, AP reported. In the order, the judges characterized the case as “one of the few rare cases that rises to the level of dismissal,” according to the AP story.
After the ruling was filed, defense attorneys began seeking further relief, asking the judges to reconsider and make the dismissals permanent, and in the alternative to punish Smith. AP reported that defense motions said the judges did not give defense attorneys a chance to respond as permitted before the dismissal order was issued, and they urged sanctions or other remedies tied to what they described as systemic misconduct.
Defense attorneys also argued that the government’s handling amounted to an institutional cover-up. They said in motions that misconduct “metastasized” into systemic, institutional failure and that, according to their filings, the government knew about “highly prejudicial” information by March but withheld it for nearly two months. They further argued that the “taint in this case” was widespread and continuous, and they asked the court to disqualify Smith’s entire office, move the cases to the Department of Justice in Washington, or transfer them to a different U.S. attorney’s office.
The dismissal order, AP reported, stayed the effect of the decision through Wednesday or until Smith declines to contest it, meaning the government could potentially pursue additional steps in the interim. The judges also specified the dismissals were without prejudice, which, as the order states, would allow Smith to re-empanel another grand jury and present the cases again “with a clean slate.”
Smith’s office did not comment on the dismissal order, AP reported, and the report said Smith referred to his statements in court files. AP also reported that Smith faces a vote next week to confirm his troubled nomination in the U.S. Senate, and that U.S. Sens. John Barrasso and Cynthia Lummis supported Smith and planned to vote, though they did not respond to questions about whether they would continue to back him.