This story was originally published by WyoFile.
Maya Shimizu Harris
WyoFile
Interim U.S. Attorney for Wyoming Darin Smith handed out business cards to grand jurors and invited them to contact him, the U.S. Attorney’s Office disclosed in new court filings after several defendants accused Smith of polluting the grand jury.
Smith also asked for a list of grand jurors and described the concerned cases as “slam dunks,” according to the documents.
Last month, federal public defenders asked judges to dismiss six felony grand-jury indictments because Smith allegedly prejudiced jurors by calling the defendants “murderers,” among other things. Two more defendants have since filed motions claiming misconduct by Smith.
The U.S. Attorney’s Office’s responses to these requests, filed May 8, describe Smith’s comments as “ill advised.” Nevertheless, they assert that dismissing the indictments isn’t warranted. The documents also state that the U.S. will seek to seat a new grand jury and re-present the defendants’ cases to the new panel “that will have never heard” Smith’s remarks.
A spokesperson for Smith said his office would not discuss details amid the proceedings.
Smith is the top federal law enforcement officer in Wyoming and served briefly as a state senator. Former U.S. Attorney General Pam Bondi appointed Smith to serve as an interim U.S. attorney.
The U.S. Senate is set to have a preliminary vote today on Smith’s nomination to be Wyoming’s U.S. attorney for the next four years.
In response to the allegations and in accordance with duties outlined in the Wyoming Rules of Professional Conduct for Attorneys, the U.S. Attorney’s Office investigated the March grand jury proceedings. The review resulted in further disclosures about Smith’s conduct, including that he had passed out business cards to grand jury members and had asked for the list of grand jurors. According to court documents, Smith reported that none of the grand jurors had reached out to him and that he hadn’t done anything with the list of grand jurors.
The U.S. Attorney’s Office responses also state that Smith had stood at one point and said something to the effect of, “like I told you guys before, we’re only giving you ‘slam dunks.’”
The U.S. Attorney’s Office investigation, the responses state, “revealed that USA Smith was perhaps overly informal and friendly with the grand jury.” But the office argued that the grand jury’s role is “not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.” Hearing only the prosecutor’s side to make that assessment “has always been thought sufficient,” the office said. Moreover, the responses argue, Smith’s remarks “are simply not the kind of comments that would overbear the will of the grand jury.”
“Because the process is accusatory and the prosecutor presents indictments, grand jurors are necessarily aware that the prosecutor believes that an indictment is warranted,” the documents state. The “extensive selection process, the grand jury’s oath, and the court’s instructions emphasized the need for the grand jury to independently consider the evidence before it,” the U.S. Attorney’s Office argues. “There is no reason to believe that the grand jury did not follow the court’s instructions.”
The office acknowledges that prosecutors shouldn’t take steps that “could be seen as an attempt to curry favor with the grand jury.” But it asserts that handing out business cards didn’t pollute the grand jury. “While handing out business cards and engaging in casual banter might be characterized as overly friendly or inadvertently currying favor, it is certainly not the kind of thing that would overbear the grand jury’s will and cause them to abandon their role as a body,” court documents state.
Questions over qualifications
The U.S. Senate Judiciary Committee endorsed Smith to be Wyoming’s federal attorney on a party-line vote last year. During that meeting, two U.S. senators called him unqualified and alleged he made false claims about the Jan. 6 insurrection, which he had attended.
A small group organized by tribal advocacy groups protested Smith’s nomination at Riverton’s City Park on the afternoon of May 8. Nicole Wagon, an MMIR 307 activist and enrolled member of the Northern Arapaho Tribe, said Smith “is not qualified for the position” and urged people to call Wyoming’s congressional Sens. Cynthia Lummis and Barrasso.
“He failed, and tainted the grand jury in seven-plus … seven-plus felony cases,” she said. “We need to make it safe again for all our people. It’s not just an Indigenous thing, it’s for every Wyoming citizen. We need better, we deserve better, and accountability.”
Lennie Poitras, who heads the Fremont County Action Committee, also described Smith as unqualified. “I just feel that we need to have better representation for our attorney for Wyoming,” Poitras said. “This guy is not qualified, and he is endangering justice for, not just for Native Americans, but for everybody.”
“We’re asking them to make life and death decisions, depending on them for justice. They should, at the bare minimum, be competent at what they do. They should have experience at what they do,” Matt Hartman of Riverton said.
“It’s the job of the United States Senate to, you know, check what they do. Is this somebody that is really acceptable for this job? I personally haven’t seen anything to suggest that this person is. So I would expect my senators to do their due diligence. To do their job, frankly. I expect them to do what’s right for the people of Wyoming. All of the people of Wyoming.”
Wyoming’s congressional delegations are supporting Smith’s nomination. Barrasso has called him “well qualified.”
Sarah Squires from WyoToday contributed to this report.