http://www.sltrib.com/news/ci_7620591

Judge throws out assault conviction, says jurors showed bias
Jury member says talk turned to American Indians' drinking habits during
deliberations

By Pamela Manson
The Salt Lake Tribune
Article Last Updated: 12/03/2007 01:29:40 AM MST

According to court documents, the Bureau of Indian Affairs received a
report on April 14 that Kerry Dean Benally was driving erratically in the
White Mesa area in southeastern Utah. An officer found him on the
reservation and followed him to a residence.

The officer said Benally, who appeared to be intoxicated, punched him and
struck him in the face with a flashlight. Benally, 35, was charged with
assault on a federal officer.

His trial in U.S. District Court in Salt Lake City began Oct. 9 and the
jury returned a guilty verdict the next day.

When jurors were selected to hear the assault case of Ute Reservation
resident Kerry Dean Benally, no one said yes when U.S. District Judge Dale
Kimball asked if they had any preconceived ideas about American Indians.

But following Benally's conviction, juror Karen Cano came forward to say
the talk during deliberations had turned to the drinking habits of American
Indians.

According to an affidavit by Cano, the jury foreman told his peers that he
had lived on or near a reservation. She said the foreman told them "When
Indians get alcohol, they all get drunk," and that "when they do get drunk,
they get wild or violent."

A female juror appeared to agree by saying something about what happens
when "they get drunk," Cano wrote. Two other members of the jury talked
about the need to send a message to the reservation — one allegedly saying
his relatives in law enforcement had talked "about what happens when people
mess with police officers and get away with it," according to Cano.

The complaints were enough to convince Kimball to throw out Benally's
conviction and grant a new trial. The judge ruled Nov. 20 that two jurors
had failed to answer honestly during jury selection about whether they had
preconceived ideas about American Indians.

One juror's talk about similar cases he had heard about from family members
who were in law enforcement also likely impacted the verdict, Kimball
wrote.

The U.S. Attorney's Office is considering whether to appeal Kimball's
decision. Prosecutors dispute there was any juror misconduct and insist
there is no proof of prejudice, saying Cano's affidavit contains
"unreliable hearsay."

In a motion for a new trial, assistant federal defender A. Chelsea Koch
said Cano contacted the defense on Oct. 11 because she was concerned about
the racial prejudice of two jurors.

In a brief opposing Benally's request for a new trial, the U.S. Attorney's
Office said the alleged statements about living near a reservation and
seeing Indians drink do not prove bias.

"Even when bias is shown, a new trial is only required if the misconduct
was so prejudicial that defendant did not receive a fair trial," prosecutor
Trina Higgins wrote.

pmanson@...