Appeal focuses on sanctity of jury deliberation

Published: Sunday, Aug. 24 2008 1:06 a.m. MDT

Interpreting a federal law that protects the sanctity of the jury deliberation process is at the heart of an appeal heard Wednesday by U.S. 10th Circuit Court judges.

The satellite hearing was held at the University of Utah's S.J. Quinney College of Law.

The three-judge panel from the Denver-based court peppered both presenting attorneys with questions on the decision by Utah's U.S. District Court to throw out the assault conviction of a Native American man after racially charged comments made during jury deliberations in his trial were brought to light. Utah's U.S. Attorney Brett Tolman appealed that decision.

Both federal public defender Scott Keith Wilson and assistant U.S. attorney Trina A. Higgins spent much of their allotted 15 minutes responding to questions from the panel. Wilson said that is exactly what any attorney hopes for when presenting before a court.

"This was an excellent panel for this case," Wilson said. "The judges were engaged, had questions — and that's what the oral argument is about."

The Federal Rules of Evidence are the body of code that governs proceedings in U.S. district, appellate and bankruptcy courts. Rule 606(b) forbids jurors from discussing what takes place during deliberation, but creates exceptions in certain cases. Several exceptions allow for post-trial juror testimony. Two of them provide that exception if "extraneous prejudicial information was improperly brought to the jury's attention" or "any outside influence was improperly brought to bear upon any juror."

Following the October 2007 U.S. District Court trial that convicted Kerry Dean Benally, an enrolled Ute Indian, of assaulting a Bureau of Indian Affairs law officer, a juror contacted Benally's lawyers and recounted a statement made by the jury foreman that "when Indians get alcohol, they get all drunk."

The juror said the foreman went on to intimate that when American Indians do get drunk, they get wild or violent. A defense investigator also obtained testimony from another juror that heard other statements. Benally's attorneys asked for a new trial and were granted one by U.S. District Judge Dale Kimball. He found that the two jurors "had failed to honestly answer a material question" during the portion of the trial where the judge questions jurors to reveal any biases that may preclude their ability to render a fair verdict.

While Wilson contended that this ruling was fair and appropriate, Higgins contested the basis of Kimball's ruling, arguing that the jurors didn't lie, because the judge in the case did not ask the right question during jury selection, and that the statements made during deliberation did not meet the exception requirement of Rule 606 (b.)

A spokeswoman from Higgins' office said Wednesday after the trial that they do not issue statements on cases under judicial review.

If the U.S. Attorney's appeal is successful, Benally's conviction will be reinstated and a sentencing hearing will be scheduled. If not, a new U.S. District court hearing on the assault charge will be conducted. Rulings by the 10th Circuit Court are typically rendered in two to six months.

Benally remains in custody.


E-mail: araymond@desnews.com

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