Derrick Smith And Double Jeopardy

There’s a strong possibility a former state legislator who’s fighting a federal indictment could return to the Illinois General Assembly. The House expelled Derrick Smith after he was charged with bribery.  But he’s still on the ballot for tomorrow’s election.  And he’s ahead in the polls.   Amanda Vinicky looks into what could happen if Smith does win. 


Attorney Victor Henderson and then State Representative Derrick Smith during a special investigative committee that led to his expulsion from the House.

  The vote wasn’t even close.  By 100-6, then Representative Derrick Smith’s colleagues voted to remove him from office.

SPEAKER MICHAEL MADIGAN: “The resolution is adopted and Representative Derrick Smith is hereby expelled from the House of Representatives.”

That was in August, a good five months after the FBI arrested him on allegations he’d taken a $7,000 bribe in exchange for helping a daycare in his west-side Chicago district secure a state grant.

Setting in motion a process that hadn’t been used since 1905, the last time a Representative was kicked out of the House. 

Back then, another Cook County Democrat, Representative Frank Comerford, was expelled for “besmirching” the House’s reputation. In the election to fill his vacancy, he ran, won, and was right back in office.

Smith could follow in Comerford’s footsteps.  Although he was arrested just a week ahead of the March primary, Smith easily won, landing himself a space on the general election ballot. According to polls, he’s well on the way to victory. Smith’s polling puts him far ahead of his opponent.

But this time if he wins, there’s no way the House can get rid of him. The Illinois Constitution has what’s basically a “double jeopardy” clause.

The constitution’s very vague on the issue of expulsion, but it does say “a member may be expelled only once for the same offense.”

DURKIN: “The question was fairly raised and discussed internally.”

Representative Jim Durkin, a Western Springs Republican who served as something like a prosecutor in the House’s disciplinary proceedings against Smith, says legislators were aware of the provisions at the time.   But he says they decided to go forward with it anyway. The integrity of the House was at stake. 

DURKIN: “It is something we were aware of, but we also believed we had to do what was within our means to address the issue.”

Durkin says there’s little way around it.  Same goes for Barbara Flynn Currie, the House’s number two Democrat.  

Both agree that the only caveat would be if  – and that’s a big “if” … Smith is accused of doing something else illegal, unrelated to the bribery charge.

Currie says there’s one other way Smith could be removed from the House.

CURRIE: “Should Mr. Smith be convicted of a federal felony, then he would be out on that ground.”

The state constitution disqualifies anyone convicted of a felony from holding public office.  Durkin, a former prosecutor, says the House didn’t wait to expel Smith because there’s no telling how long the criminal trial would take. There still isn’t.

DURKIN: “It could be another year to a year and a half before we actually have a trial at the federal courthouse.”

Meaning …

DURKIN: “If by chance Representative … well, he’s not longer Representative … wins his election in November, he could serve through the whole next term.  A lot of it depends on when the case will go to trial.”

It’s important to point out that Smith is fighting the bribery charge.  He says he’s innocent.  His lawyer has hinted he’ll argue the FBI sting was “entrapment.”

Even if Smith gets off on that technicality in court, it’s not enough for Republican Representative Sid Mathias of Buffalo Grove.

Mathias has introduced an amendment striking that “double jeopardy” clause from the Constitution.

MATHIAS: “I give the example of when Governor Blagojevich was impeached.  Part of that impeachment proceeding included a resolution that he could no longer run for public office.  It doesn’t make sense to me why that doesn’t also apply to a House or Senate member.”

It may come as little surprise that Smith’s attorney, Victor Henderson, isn’t impressed by the idea.

HENDERSON: “Would it surprise me that there might be a representative or a group that would try to prevent the representative from being seated in January? It would not.  Because we’ve already had people approach us with that.  But that’s politicians trying to override the will of the people.”

Henderson says his client hasn’t worried much about it.

HENDERSON: “He’s singularly focused on winning the election despite the onslaught of fear Democratic Party officials who are trying to undermine his reelection bid … he has not … at least with me … focused on the legalities of how it would impact him in the future once he wins in terms of sitting in the House again.”

What may be surprising is that Smith’s opponent, Lance Tyson, doesn’t favor the idea either.  

TYSON: “Representative Mathias’s resolution – I’m looking at it – I don’t think that it’s right.  The vote .. don’t, don’t underestimate the voters.  I have a lot of faith in them.”

 Tyson calls himself the “true Democrat” in the race  – even though on the ballot he’s got a “Unity Party” label.  After the bribery allegations, Democratic leaders selected Tyson as their candidate.  But because Smith refused to give up his slot as the Democrat, they had to create a third party.

Despite polls that have him trailing Smith, Tyson says he has confidence in 10th district voters.

TYSON: “It would be pretty much shutting folks off form state resources.  Whether it be because he’s going to be focused on making sure he doesn’t go to the federal penitentiary, or just the reality that he has no creditability in terms of negotiating and to be able to bring resources back to the … i.e. to do his job.  And so, I don’t think that Representative Mathias’s resolution is right because we will win this race.”

But if the polls are correct and Smith wins … when legislators are sworn in for a new term in January, he could be standing shoulder to shoulder with many of the very lawmakers who led to his ousting.

Representative Durkin, who helped lead the charge in expelling Smith from the House, says he can’t imagine how Smith will feel.

DURKIN: “Add it the awkward moments in Illinois history; not one to be proud of though.” 

Durkin says he hopes the same voters who chose Smith in the primary, a week after his arrest, are paying more attention this time. 


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