Leroy Jemol Smith is one step closer to being released from custody based on his membership in a Native American tribe.
Judge Robin Adair ruled on Monday that whether Smith is a member of a recognized tribe is a decision for the 10th Circuit Court of Appeals, not the trial court.
Smith, 51, had been previously charged in Muskogee County District Court with five counts of first-degree rape by force or fear. But, after a decision was rendered in the case of Jimcy McGirt by the U.S. Supreme Court, Smith's case was dismissed in August in Muskogee County and forwarded to the United States District Court for the Eastern District of Oklahoma for prosecution.
U.S. District Judge Ronald White dismissed the criminal case against Smith, based on the expiration of the statute of limitations in federal court.
Smith is being held without bond in Muskogee County/City Detention Center accused of raping four women in Muskogee between 1993 and 1995.
Defense lawyers maintain that Smith is a member of the Muscogee (Creek) Nation and should not be on trial in state court.
Muskogee County District Attorney Orvil Loge's new filing is based on the fact that the incidents occurred before Smith became a member of a federally recognized tribe; therefore he isn’t covered by the McGirt Supreme Court ruling.