Judges Dismiss Nine Felony Cases, Including Murder, Over Darin Smith Misconduct

Wyoming’s federal judges on Friday dismissed nine felony-level criminal cases, including one first-degree murder case, due to prosecutorial misconduct brought on by “inflammatory and inappropriate” comments interim U.S. Attorney nominee Darin Smith made to a grand jury. The judges paused their dismissal order until Wednesday at 5 p.m. to give the federal government the chance to appeal. The order dismisses the cases “without prejudice,” meaning the government can try to have the defendants charged again.

Smith, President Donald Trump’s nominee to hold the position for the next four years, is slated for a confirmation vote in the U.S. Senate next week. Defense attorneys filed at least 10 motions to dismiss various indictments, saying Smith had spoiled grand jury proceedings with inappropriate comments. Wyoming-based U.S. District Court Chief Judge Kelly Rankin, and Judges Alan B. Johnson and Scott Skavdahl agreed with the defense attorneys.

Smith’s statements “cannot be downplayed as ‘perhaps overly informal and friendly’ conversation,” the judges’ order said. “They were inflammatory and inappropriate. And, until proven guilty, they are incorrect.” According to court documents, Smith had referred to defendants as “murderers” and “bad people,” called cases “slam dunks,” spoken with grand jurors, and handed out his business card before the judge entered the room. The U.S. Attorney’s Office had argued Smith’s comments were “ill-advised” but did not rise to the level of prejudicing the defendants. The judges disagreed, writing that providing “the business card of a high-ranking government official” and inviting grand jurors to reach out to him “appears to curry favor with the grand jurors.”

“This is not a case where a few off-hand statements were improperly sprinkled throughout the presentation of evidence in one defendant’s case,” the order said. “This misconduct began with some of the first words spoken to the grand jurors by the U.S. Attorney.” The judges noted that Smith’s office felt it necessary to disclose some interactions that defense attorneys had not raised. “The misconduct continued to permeate the proceedings in the off-record conversations, occurring on the breaks between indictments. This is deeply concerning.”

Shortly after the order, defense attorneys filed motions for reconsideration, arguing the cases should have been dismissed “with prejudice” so they could not be brought again. The defense wrote that the outcome “inadvertently rewards the United States Attorney’s Office for an institutional cover-up” and that the misconduct “metastasized into systemic, institutional failure.”

Former Wyoming Attorney General Pat Crank, who worked as a federal prosecutor under three U.S. Attorneys from 1990 to 2002, voiced shock. “In my tenure, everything we said to the grand jury was recorded by the court reporter, and that was all to protect the sanctity of that process,” he said. “If I did that I would have been fired instantly. To hand out business cards and tell them we’re going to bring murderers is outlandish.”

The Northern Arapaho Business Council voiced opposition to Smith’s confirmation, stating, “The Tribe finds these actions deeply troubling and inconsistent with the solemn responsibility entrusted to the United States Attorney’s Office. The stakes on the Wind River Reservation are far too high for carelessness. The federal government has a trust responsibility to Tribal Nations. That responsibility includes the fair, competent, and ethical prosecution of violent crimes occurring within Indian Country.” The council said it knows there are better candidates and does not support Smith’s nomination.

The nine dismissed indictments include a murder case against Jose Benito Ocon, accused of fatally shooting a man in the head, as well as cases involving unlawful firearm possession, child pornography, and drug distribution. Because the order is stayed, defendants in jail are not getting out Friday. Smith did not return a request for comment.