Hearing held on special prosecutor's joint trial request

Noel Lyn Smith The Daily Times
The Daily Times

WINDOW ROCK, ARIZ. — The special prosecutor for the Navajo Nation on Friday explained the court should allow council Speaker Johnny Naize and four other current and former council members to be tried as a group on charges that they misused money in the tribe's discretionary fund.

In April, the special prosecutor filed a motion to try tribal council Speaker Johnny Naize, current delegate David L. Tom and former delegates George Arthur, Leonard Teller and Ernest D. Yazzie Jr. in a single trial.

Naize, Tom, Arthur, Teller and Yazzie were present for the hearing presided over by District Court Judge Carol Perry in Window Rock District Court.

All five face bribery charges for participating in schemes to use money in the council's discretionary fund for personal expenses. The fund was created so delegates could provide financial assistance to tribal members facing emergency situations or financial hardship.

In a motion filed in April, the special prosecutor asked for joint trials because the cases concern defendants who allegedly were involved in the same conspiracies, face the same charges or share common witnesses. The motion also notes the move would save the tribe time and money.

Attorney Marc Lowry, who represents the special prosecutor, repeated those arguments during the nearly two-hour hearing.

Lowry used large charts to show the relationships among the defendants as well as a partial list of common witnesses, which includes Controller Mark Grant, personnel from the tribe's Office of the Auditor General, and Leonard Gorman, who served as the chief of staff under former Speaker Lawrence T. Morgan.

If each defendant were tried individually, each witness would be called to testify for all five cases and the opportunities for defendants to "craft" a stronger defense could happen after each case is brought to trial, he said.

A way to avoid that is to have the witnesses appear once in a group trial, Lowry said.

Perry allowed 10 minutes for each defendant or their attorney to respond to the special prosecutor's request.

Neither Teller nor Arthur had lawyers present while Yazzie represented himself.

Arthur had been represented by attorney Richard Wade, but Wade was disqualified as Arthur's counsel on June 24 due to a conflict of interest, according to court documents.

Teller's attorney attempted to attend the hearing by telephone but Perry denied the request.

Both men said they were not in position to respond to the motion.

"We are not of legal mind," Teller said.

After the special prosecutor's presentation, Yazzie verbally agreed to the joint trial request.

Attorneys for Tom and Naize presented arguments against the motion that either incorporated Navajo tradition, tribal statues, federal law or the tribe's criminal code.

Attorney Samuel Pete, who is representing Tom, said the special prosecutor did not adequately demonstrate how group trials would be cost effective.

Pete said the court cannot be asked to rule on "guess work" and added that a cost analysis should have been presented to the court.

"Without any proof of savings to the Navajo Nation, this motion should fail," Pete said.

As part of the defense, Pete called Harry Walters, an adjunct professor of Navajo tradition, culture and philosophy at San Juan College and Diné College, to testify about Navajo philosophy.

Walters testified that the creator recognizes people, animals, insects and plants as individuals despite living or acting in a group.

He further explained that humans each have a unique footprint and this is recognized by the Holy People when prayers or ceremonies are conducted.

With that in mind, the Navajo people view themselves and their actions as individual, Walters said.

Pete then asked Walters if a group trial, according to Navajo philosophy, would be wrong and Walters responded, "Yes."

Attorney Harriet McConnell, one of Naize's lawyers, took a different approach by arguing that Rule 7 of the Navajo Nation Criminal Code does not allow for the "joinder" of defendants.

"Only one defendant shall be charged in one complaint even if more than one defendant is alleged to have taken part in the same act or series of acts constituting the crime charged," the rule states.

McConnell said the court needs to treat each defendant as "an individual."

Lowry was allowed time to respond to those arguments and turned to a March 2011 opinion and order issued by the Navajo Nation Supreme Court in response to a motion filed by former delegate Evelyn Acothley and others against Perry and the Window Rock District Court.

He said the high court ruled that the district courts "shall consolidate and hold joint trials for defendants on all outstanding charges in the discretionary fund cases where single conspiracy charge is shared."

He noted that the tribal cases against former chairman Peter MacDonald and his son, Peter Jr., were tried jointly in the 1990s.

Also, the jury will take notes during the trial and develop a personal system of distinguishing among the defendants, he said.

"So there will be no opportunity for jury confusion," Lowry said.

A ruling could be issued next week, according to the court administration.

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636 and

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