Judge Dale A. Kimball – Motion for New Trial Granted

UNITED STATES OF AMERICA, Plaintiff, vs. KERRY DEAN BENALLY, Defendant.

Case No. 2:07CR256 DAK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2007 U.S. Dist. LEXIS 85620

November 20, 2007

Judge Dale A. Kimball

Criminal trial was held on October 9-10, 2007. The jury returned a verdict of guilty on the afternoon of October 10, 2007. On October 11, 2007, counsel for defendant was contacted by a juror who expressed concern regarding racially prejudicial statements made by two jurors during the deliberations. The prejudice of these jurors had not been disclosed to the court and counsel during voir dire. Defense counsel then talked with another juror, who confirmed that such statements had been made during deliberations. Motion for New Trial was subsequently filed by defense counsel.

The court asked questions during voir dire that were specifically targeted at determining whether anyone had any prejudice toward Native Americans or held any preconceived notions about the Native American race that may impact their ability to be impartial in the case. Both jurors remained silent when these questions were asked, and did not convey to the court that they held any prejudice. Moreover, they failed to disclose to the court that they had lived on or near a reservation, and did not bring to the court’s attention that they had preconceptions about Native Americans due to their contact with that culture.

The court also stated that “had they [the jurors] answered the voir dire questions honestly and revealed their past contact with reservations and their belief that all Native Americans get drunk and get wild or violent, they would have been challenged for cause.”

“During jury deliberations, there was a conversation regarding the need to send a message back to the reservation, and one of the jurors clearly introduced information that was not in evidence. The juror considered and relied upon information contained in stories he had heard from his family members who were involved in law enforcement. These stories related directly to the type of case that was at issue in the instant case. It is unknown how many jurors relied on the information communicated by this juror.”

Based on two jurors’ failure to answer material voir dire questions honestly and the consideration of information not in evidence, Defendant’s Motion for New Trial was granted and the jury prior verdict was set aside.

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