A former Taco Bell manager whose first-degree murder conviction of a worker at the restaurant was thrown out last month because of prosecutorial misconduct is arguing he cannot be retried based on the legal theory of double jeopardy.

The attorney for Zairyre Simmons filed a motion Friday contending Pennsylvania’s constitution bars a second trial for the same crime if the prosecution has acted “recklessly.”

In this case, defense attorney Ryan James claims, that’s exactly how the Allegheny County District Attorney’s Office behaved.

“Serious violations call for equally serious remedies,” wrote James. “Mr. Simmons has suffered the stigma of a murder conviction resulting from a trial in which the commonwealth acted recklessly with respect to his rights.”

But Carmella Wilson, whose son Dorian Carver of Harrison was shot and killed by Simmons, wonders how such a request can be made.

“I understand you have to defend your client, but he confessed,” Wilson told TribLive Monday. “We have the murder weapon. We have video. We have witnesses. We have everything. You did it. So why wouldn’t you ask for a plea? Why would you ask for double jeopardy for this killer to walk?

“It doesn’t make any sense.”

A hearing on the motion to bar retrial is scheduled for Nov. 17.

The concept of double jeopardy prevents being prosecuted twice for the same crime.

“[T]the Pennsylvania Supreme Court has recognized that where the commonwealth intentionally or recklessly engages in misconduct that deprives a defendant of a fair trial, it is considered ‘prosecutorial overreach’ triggering double jeopardy, and retrial is barred,” James wrote.

A conviction overturned

Simmons, 26, was accused of killing Carver on Nov. 9, 2022.

Both men worked at Taco Bell in Scott, and that morning, they had an argument over a written reprimand Carver had received.

Carver, 32, walked away. But Simmons, who was working as a manager at the Cochran Road restaurant, followed him into the store’s vestibule, where the argument turned physical.

Carver left the property. Simmons retrieved a coat — where, police said, he had a gun — and followed Carver to the lobby of the Northwestern Mutual Life insurance building 500 feet away.

Simmons shot Carver twice.

He was arrested and charged with criminal homicide, receiving stolen property for the gun that was used and carrying a firearm without a license.

The case went to trial in January before Allegheny County Common Pleas Judge Bruce Beemer.

During trial, however, the prosecution presented no evidence the gun was stolen or carried without a license.

Simmons’ lawyer asked for his client to be acquitted of those charges.

The judge granted the request, and so those two charges cannot be retried.

That left the jury to deliberate only on the homicide count. They returned a verdict of guilty of first-degree murder.

Simmons was ordered to serve a mandatory penalty of life in prison without parole.

However, on appeal James filed a motion for a new trial based on prosecutorial misconduct.

He argued that because the prosecution initially told the jury about the gun and receiving stolen property counts, they were predisposed to believe his client to be a thief.

The Allegheny County District Attorney’s Office conceded the error and agreed Simmons should receive a new trial.

On Friday, James filed a motion to bar a retrial based on double jeopardy grounds.

“Mr. Simmons’s constitutional rights to an impartial jury and due process of law were irreparably damaged by the commonwealth’s conscious decision to pursue charges for which it lacked evidence,” the attorney wrote.

James’ theory is that the behavior by the DA’s office was so egregiously reckless it doesn’t deserve a second chance to prosecute the homicide charge.

The commonwealth had more than two years prior to trial to gather evidence on the gun charges, James wrote.

When prosecutors learned they didn’t have the evidence, they could have withdrawn them. Instead, the DA’s office allowed both counts to be read to the jury.

The violation, the motion said, was particularly egregious because Simmons testified in his own defense.

Simmons admitted to the shooting, telling the jury he feared for his own safety at the time he pulled the trigger. Experts retained by the defense also testified that Simmons had post-traumatic stress disorder from witnessing previous acts of violence.

“The jury could not fairly assess or weigh his credibility when its judgment had already been tainted by being told more than once that, seemingly, Mr. Simmons was a thief, and he carried a firearm without a license,” James wrote.

Rare circumstance

James said that the prosecution can be barred from a retrial based on either intentional or reckless conduct under Pennsylvania’s constitution.

“The commonwealth acted recklessly, without regard for the deleterious effects that its actions would have,” James wrote.

“Its actions were more than merely negligent. Its understanding that it lacked necessary evidence but remained silent reflects recklessness, a conscious choice to proceed while disregarding the substantial and unjustifiable risk for damage that could result to Mr. Simmons’s constitutional rights.”

In his motion, James wrote that there are few examples of this type of misconduct either in Pennsylvania or across the country.

“Typically, charges for which the commonwealth lacks evidence do not ever make it to a jury,” James wrote.

“The lack of case law speaks to the fact that claims of prosecutorial misconduct of this type are (and should be) exceedingly rare because the idea of proceeding on charges for which the prosecution lacks evidence is inimical to the system of justice in this country as a whole.”

‘Let’s do it again’

For Carver’s mother, who traveled to Pittsburgh from Houston, Texas, for a brief scheduling hearing on Monday, the idea that Simmons could walk away is offensive.

Although she was critical of Deputy District Attorney Jarrod Caruso, who tried the case — and questioned why he wasn’t more prepared when the trial began — Wilson was grateful the jury found Simmons guilty of murder.

When she learned the conviction was overturned, Wilson was irate. Her frustration was exacerbated by the lack of communication she had with the DA’s office.

But on Monday morning, Wilson met with the new prosecutors on the case and said that they had a good conversation.

“They took the time to sit down and answer all of our questions in detail,” she said.

Wilson was further reassured that the DA’s office is intent on having a retrial — and not offering Simmons a plea deal.

“That’s what I want to hear,” Wilson said. “They said the DA’s office is on board 100% to retry it.”

And, she continued, they believe they will get the same verdict.

“We just want to go to trial. Just, let’s do it again,” Wilson said. “You got another chance, Mr. Simmons. Take it. Take your chance.”

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