Judges from the 10th Circuit Court of Appeals will decide whether an assault case should have been dismissed because jurors made racially inflammatory comments.

The judges, in Salt Lake City today for a satellite hearing, will consider the appeal of a Utah federal judge's decision to throw out the conviction of a Native American man in the October 2007 assault.

U.S. Attorney for Utah Brett Tolman's office filed an appeal of the November ruling by U.S. District Judge Dale Kimball. The judge ruled that statements made by two jurors during the deliberation phase of the case indicated they had "failed to honestly answer a material question during 'voir dire."' Voir dire is the portion of a jury trial were attorneys, or a judge, question potential jurors to determine personal biases that may affect their ability to fairly render a verdict.

Kerry Dean Benally, 36, an enrolled member of the Ute Mountain Ute Tribe and resident of the Ute White Mesa Reservation near Blanding, was found guilty by a federal jury on Oct. 10, 2007, of assaulting Bureau of Indian Affairs officer Jimmy Dale Cline in April 2007.

Following the incident, Cline told FBI investigators that he thought Benally was intoxicated at the time. The day after the jury rendered its verdict, one of the jurors contacted Benally's attorneys with concerns about statements made by two jurors during deliberation. This juror stated in an affidavit that the jury foreman said "that he used to live on, or maybe he lived by an Indian reservation. He then stated 'when Indians get alcohol, they all get drunk' and then added when they do get drunk, they get wild or violent or something to that effect."

In another statement given to a defense investigator, a juror said that "at least two other jurors agreed with the foreman about Indians and drinking."

Tolman's office disputes Kimball's finding, claiming the allegations are not competent evidence to warrant a new trial and stated in a court filing that "the district court abused its discretion by granting Benally's motion for a new trial based on the evidence of alleged juror misconduct in the juror's affidavit and the defense investigator's declaration." In the event their appeal is successful, Benally's conviction would be reinstated and he would be scheduled for a sentencing hearing.

Public defender Steven Killpack's office filed a brief stating that the U.S. attorney mildly characterizes the racist juror statements "as if they were just some offhand quaint observations or innocuous generalizations." Further, that "Mr. Benally was essentially reduced to the worst sort of cartoon stereotyping which, not coincidentally, was especially highly prejudicial because it served to confirm his guilt of the charge in this case."

If the appeals court judges deny the appeal, Benally would be retried in Utah's U.S. District Court.

Three judges from the Denver-based 10th Circuit will hear oral arguments on the appeal at the S.J. Quinney School of Law at the University of Utah today. Rulings on appeals typically take about two to six months.

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