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Dec 3, 8:08 PM EST

Jury's talk about Indians and alcohol gets man new trial

SALT LAKE CITY (AP) -- A judge threw out an assault conviction against an
American Indian after some jurors discussed stereotypes about the drinking
habits of Indians during deliberations.

Kerry Benally of the Ute tribe deserves a new trial because two jurors
failed to honestly answer questions about their "preconceived notions"
about Indians before trial, U.S. District Judge Dale Kimball ruled Nov. 20.

Benally, 35, was accused of striking a Bureau of Indians Affairs officer
with a flashlight after complaints that he was driving erratically in the
White Mesa area of southeastern Utah.

Benally was found guilty Oct. 10 in federal court in Salt Lake City. After
the conviction, his attorney, A. Chelsea Koch, asked for a new trial, based
on information from two jurors.

Juror Karen Cano said the jury foreman stated, "When Indians get alcohol,
they all get drunk."

"He then added that when they do get drunk, they get wild or violent, or
something to that effect," Cano said in an affidavit.

"During another discussion, another juror asked what would happen if we
found him not guilty? What kind of message would we be sending back to the
reservation?" Cano said.

Another juror, Mark Gurnsey, said statements during deliberations
"stereotyped the Indian culture regarding their propensity for drinking,"
wrote Robin Howell, an investigator for the defense.

Assistant U.S. Attorney Trina Higgins opposed the request for a new trial,
saying the reports by Cano and Gurnsey were hearsay.

Benally was accused of assaulting a police officer who stopped him outside
his home. The officer believed Benally had been drinking, but alcohol had
nothing to do with the charge, Koch said Monday.

Benally has been in custody since his arrest in April and remains in a
county jail that holds federal defendants. Prosecutors must decide whether
to appeal the judge's decision or pursue a second trial, Koch said.

"I am doing a whole lot better thanks to you granting me a new trial,"
Benally said in a recent letter to the judge.

Cano, the juror, said she felt pressured to convict Benally. She told the
jury foreman that his views on Indians should have prevented him from
serving.

"He didn't say anything. Everyone who heard the conversation then went
quiet," Cano said in her affidavit.

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