Message #387:

From: AzTeC SW Archaeology SIG

To:   Matthias Giessler

Subject: Redd Case Appeal

Date: Wed, 10 Dec 1997 12:12:53 -0700



From: Kevin Jones 

Tuesday, December 9, 1997
Appellate Court to Hear Case Against Blanding Couple
BY CHRISTOPHER SMITH
THE SALT LAKE TRIBUNE
The Utah Court of Appeals is scheduled to hear arguments next month in the
criminal case against a Blanding doctor and his wife accused of digging up
a prehistoric Indian gravesite. The Utah Attorney General's Office
maintains that 7th District Judge Lyle Anderson of   Monticello improperly
dismissed felony charges of abuse or desecration of a dead human body
against Jeanne and James Redd of Blanding. Although Anderson determined
that the Redds had intentionally dug up an Anasazi Indian grave site on
state land Jan. 6, 1996, without permission, the judge ruled the couple did
not break the law. Anderson ruled that the term "dead human body" in the
statute under which the Redds were charged applies to bodies in cemeteries,
not to prehistoric bones in unmarked graves. The Attorney General's Office
appealed, telling the appellate court that
Anderson's distinction is without foundation and is "so unworkable and so
racist" that it runs contrary to human decency. In response, attorneys for
the Redds filed briefs with the appellate court
claiming the state is "playing the racism card" and that Anderson was
"simply following the law" in not binding the couple over for trial. Court
of Appeals justices will hear oral arguments on the case Jan. 26 at 9:30
a.m. The Redd case has drawn the interest of the archaeological community,
which posts updates on various Internet Websites. Many professional
researchers fear that if the appeal is denied, it will clear the way for
anyone to excavate early Indian bones and artifacts from state lands
without fear of prosecution. The Hopi Tribe also is monitoring the case,
after publicly accusing the local justice system of affording the Redds
preferential treatment. James Redd is the only physician practicing in
Blanding, operates the county health clinic and presided over the birth of
one of Judge Anderson's children. One of the key disputes in the appeal is
whether the appellate court should consider   comments Anderson made during
the March 20 court hearing for the Redds. According to a transcript, the
judge said: "I also find probable cause to believe that [the Redds] did
disturb these -- or even dis-interred these remains." However, when
Anderson put his ruling on paper for the court record, he stated
prosecutors failed to show the bones were unearthed by the Redds. The
Redds' attorneys argue the appeals court should only look at the judge's
written   ruling, which they feel exonerates their clients. But in a
recently filed rebuttal, Assistant Atty. Gen. Joanne Slotnik notes that
Anderson verbally confirmed three times in court that he found the couple
did disinter the remains, including once in response to a direct question.
Slotnik also argues that a 1987 amendment to the Utah Rules of Civil
Procedure explicitly authorizes the Court of
Appeals to "look beyond the written findings of fact to the trial record
and evaluate the sufficiency of the judge's oral findings." If Anderson's
dismissal of the charges against the Redds is reversed by the Court of
Appeals, the case would be remanded to Anderson and the Redds would face
trial.

[ of course, in AZ,  a person who knowingly excavates in violation of
section 41-841, subsection A without obtaining a permit as required under
section 41-842 is guilty of a class 5 felony.
             
                      
http://www.azleg.state.az.us/ars/13/3702-01.htm

As I learned, Anna Otiz (a Globe AZ lawyer with a degree in anthropology
from UA) argued that 'knowingly' applied both to the act of excavation and
to being on State Trust land.  The judge bought the idea because the State
could not prove what was in the vandals mind.... I guess, in AZ, you can
vandalise anyone's property then claim you didnt know you were not on your
own land.....  sigh..... -- SASIG Ed.]