New grand jury re-indicts 9 after US Attorney Darin Smith’s ‘deeply concerning’ misconduct

A new grand jury re-indicted nine defendants whose charges were previously dismissed because of misconduct by Wyoming U.S. Attorney Darin Smith, Wednesday court filings show. 

Smith’s office didn’t immediately respond to an inquiry from WyoFile Friday morning. 

The new indictments follow an eventful few weeks for Smith, who was confirmed by U.S. senators Monday shortly after judges tossed felony charges against the nine defendants, citing misconduct by Smith that could have prejudiced members of the grand jury. 

Defense attorneys sought the dismissals, alleging Smith improperly told grand jurors that the defendants were “murderers” and that deliberations “won’t take long,” among other things. One of the defendants has been charged with a murder on the Wind River Reservation. 

Following the Wyoming Rules of Professional Conduct for attorneys, the U.S. Attorney’s Office for Wyoming undertook a review of Smith, who heads the office. That review resulted in further disclosures about Smith’s interactions with grand jurors, including that he had passed out business cards to them and asked for the list of grand jury members. 

Judges subsequently ruled in favor of the defense attorneys, concluding that it appeared like Smith was trying to “curry favor with the grand jurors,” and that prosecutors shouldn’t be soliciting communication with jury members outside of court. 

“The cumulative effect of the many known instances of misconduct leaves the court with ‘grave doubt that the [grand jury’s] decision to indict was free from the substantial influence of such violations,’” the judges wrote in a 14-page order.

The judges stayed the order, meaning the dismissals wouldn’t officially take place until last Wednesday or if Smith declined to contest it, whichever happened first. The dismissals were also without prejudice, meaning Smith could empanel another grand jury and present the cases again. 

Defense attorneys asked the judges to make the dismissals permanent or punish Smith by disqualifying the entire Wyoming U.S. Attorney’s Office from pursuing the cases. But the judges denied those requests. 

“Dismissal with prejudice is an exceptional remedy, generally requiring a showing that the misconduct has incurably affected a defendant’s ability to be indicted by an unbiased and independent grand jury or obtain a fair trial. That is not the case here,” the judges wrote. 

The court empaneled the new grand jury on Monday after dismissing the indictments, the judges state. “This Court believes this remedy is adequate and the problematic conduct, limited to the U.S. Attorney, will not be repeated, and if so, it will be reported,” they wrote. 

Smith, who was initially appointed on an interim basis in August, was confirmed in a narrow party-line “en bloc” vote along with 48 other Trump nominees, meaning senators didn’t debate his merits. 

Wyoming’s U.S. attorney has faced stiff criticism over his credentials and conduct. Smith admitted to U.S. Senate Judiciary lawmakers that he had no experience appearing in court for a criminal or civil case, questioning witnesses before a grand jury or applying for a warrant. His legal background was in estate planning and real estate law.

“Apparently, his only qualification is his loyalty to MAGA orthodoxy,” Sen. Dick Durbin, an Illinois Democrat, said at a December Senate Judiciary Committee meeting. “He has no criminal or Federal Court experience, nor has he ever tried a case to verdict, judgment or final decision.

“We asked him to list significant legislation he’d been involved in,” Durbin continued. “He left it blank.”

Some have also criticized his presence at the U.S. Capitol on Jan. 6, 2021. Smith told senators that he was on Capitol grounds on Jan. 6, but didn’t enter the building.

Smith will serve a four-year term.