A person can't be convicted of disturbing a human grave without evidence it was intended to be a grave, the Utah Court of Appeals ruled Friday.
In a widely publicized case involving a prominent San Juan County physician accused of desecrating ancient Indian remains, the court said just because bones are underground, it doesn't mean they were "intentionally deposited in the earth for the purpose of placing them in repose."The ruling upholds a lower court's dismissal of a felony complaint against Dr. James and Jeanne Redd, who were charged last year with abusing or desecrating dead human bodies.
Writing for the three-judge appeals panel, Judge Norman H. Jackson said state lawyers failed to present evidence that the human remains that the Redds were alleged to have disinterred were in fact ever interred.
According to court documents, a hiker spotted the Redds and three of their children excavating near a prehistoric Anasazi ruin in the Cottonwood Wash just north of Bluff Jan. 6, 1996.
Listed on the National Register of Historic Places, the site includes remnants of a 30-foot-wide dwelling, ceremonial kiva, courtyard and midden burial ground. Investigators found evidence that the digging had disturbed 14 or 15 human bones.
Redd told investigators he thought the site was on private land and that he had the landowner's permission to be there.
After nine months passed and no charges were filed, Hopi tribal leaders protested what they called a "reluctance to bring these vandals to justice." They and others wondered whether the Redds were receiving preferential treatment because of their standing in the community.
Redd is one of only two doctors in Blanding and a descendant of the earliest pioneer settlers of southeastern Utah.
Grand County Attorney Bill Benge - who got the case after the San Juan County attorney declared a conflict of interest - filed a complaint in October charging James and Jeanne Redd with abuse or desecration of a dead human body, a third-degree felony, and trespassing on state trust lands, a misdemeanor. The children were not charged.
The already controversial case became even more contentious in March 1997, when 7th District Court Judge Lyle Anderson dismissed the charges on grounds the desecration law was intended to "keep the people from digging around in graveyards."
The judge said, "I guess there's one school of thought that it doesn't matter how old the remains are, they're still human remains and they need to be protected from being disturbed."
At the same time, however, he questioned whether that theory would apply to "all the farmers that have run their plows across lands and . . . disturbed human remains."
Anderson said there comes a point "when we can't hold people guilty of a third-degree felony because they don't avoid all of these human remains," which he noted are "scattered all over this part of the country."
The state appealed, with one assistant attorney general characterizing Anderson's ruling as racist because it suggested legal protections that applied to a pioneer graveyard, for example, did not extend to an Indian graveyard.
However, the appeals judges said state lawyers had failed to show that the disturbed site was a graveyard. At the Redds' preliminary hearing, the evidence showed only that "the bones were unearthed from a midden area at an ancient dwelling site."
The state presented no witnesses, expert or otherwise, to establish that the remains were intentionally buried at the site, Jackson said. While the presence of other object objects possibly related to burial might also be in the ground, an "inference" isn't good enough, the court held.
Jackson said, "We must conclude that the Legislature intended this (law) to prohibit the disinterment only of dead bodies shown to have been intentionally deposited in a place of repose."
Based on that finding, the court unanimously affirmed the lower court's order dismissing the charges against the Redds.