Jury's Talk about Indians and Alcohol Gets Man New Trial

Jury's Talk about Indians and Alcohol Gets Man New Trial

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SALT LAKE CITY (AP) -- A judge threw out an assault conviction against an American Indian after some jurors talked 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 the officer believed 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 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. Cano 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.

(Copyright 2007 by The Associated Press. All Rights Reserved.)

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