EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, August 13, 2009

The Lone Ranger And Tonto Fistfight In Heaven, Take 5: First Draft Of My Amicus Curiae Brief

I have written four previous posts (here, here, here, and here) about the plight of Kerry Dean Benally. Basically, Benally was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon. After Benally's conviction, however, a juror came forward and submitted an affidavit indicating that, contrary to jurors' claims during voir dire that race would not play a factor during their deliberations, several jurors made racially derogatory comments during deliberations (you can get more details in my prior posts). The United States District Court for the District of Utah found this affidavit to be admissible and vacated Benally's conviction, but the Tenth Circuit reversed, finding the affidavit to be inadmissible under Federal Rule of Evidence 606(b); it then later denied Benally's en banc request.

Benally's case played a large role in prompting me to write my forthcoming article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. Well, now Benally has filed a petition for writ of certiorari with the United States Supreme Court, and I was approached last week to write an amicus curiae brief in support of him. Here is a link to my first run at that brief, which will be edited and made to conform with rules for submission of amicus curiae briefs before the deadline of August 21st:

Download Amicus

I post this now so that any professors who read this blog and agree with the general arguments in it can e-mail and let me know if they want to join in on the brief. Those interested can e-mail me at 7millerc@jmls.edu.



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