A defendant’s right to due process appears to be clashing with the Southern Ute Indian Tribe’s right to sovereignty in a criminal case headed for trial in 6th Judicial District Court in Durango.
Anthony Martinez, 25, is charged with felony menacing on suspicion of threatening a tribal police officer with a baseball bat. He was shot once in the back by Officer Patrick Joseph Backer.
A jury trial ended in a mistrial this summer after jurors were unable to reach a unanimous decision. Some jurors said they were split on certain details, including how Martinez could have been shot in the back if he was running toward the officers.
A second jury trial was scheduled to begin Monday, but the case was postponed until April 7 on Friday after District Judge Suzanne Carlson agreed to give the defense more time to try to obtain evidentiary material from prosecutors and the Southern Ute Police Department.
John Moran, Martinez’s public defense lawyer, said his client has been fighting an uphill battle to obtain basic evidence from tribal police and from prosecutors, as required by law. He also has struggled to gain access to potential witnesses on the reservation who are either members or employees of the tribe, he said.
The tribe won’t allow Moran to visit potential witnesses who live on the reservation without being escorted by tribal police, he said. Some witnesses won’t answer the door if they see someone with a gun and badge, he said.
What’s more, it is not fair that officers get to oversee interviews, especially when the alleged victim is an officer from the department, Moran said. In one instance, Backer acted as the escort while Moran attempted to interview potential witnesses, he said.
Martinez has a constitutional right to interview witnesses and obtain evidence that is required to be made available under state law, and if the court can’t guarantee those rights, it should dismiss the case, Moran said.
Carlson has refused to dismiss the case.
The tribe has cooperated in some respects with the criminal proceeding, but it does so on its own terms, claiming it is a sovereign nation.
Tribal police officers are cross-deputized with state and federal agencies, and, as such, they should be considered “state actors” and subject to state judicial laws, Moran said.
But Carlson compared the reservation to Canada or Mexico, and said prosecutors and defense lawyers have to play by its rules. Her court doesn’t have jurisdiction to order the tribe to do certain things, she said.
Carlson, who oversaw the first trial, worked as a part-time associate judge for the Southern Ute Indian Tribe before being appointed district judge in June 2012.
The Southern Ute Police Department routinely works with local prosecutors, but the agency is taking a different approach in this case either because it is working with a special prosecutor or because the “victim” is one of its own officers, Moran said.
The case is being prosecuted by the 7th Judicial District Attorney’s Office, which includes Montrose and Telluride, because the local District Attorney’s Office had a conflict of interest.
Backer, the officer who shot Martinez, is the son of Larry Backer, chief investigator with the District Attorney’s Office in Durango.
Keith Mandelski, deputy attorney with the 7th Judicial District, said Moran has created a “Christmas list” of evidentiary material that he wants, and much of it is irrelevant or unattainable even if it didn’t involve tribal police.
The incident occurred about 3:40 a.m. Dec. 5, 2012, at a house just west of Ignacio.
Officers with the Southern Ute Police Department said they were performing a “knock and talk,” in which they turn off their car lights, park at the end of the street and approach the house to make contact with anyone inside to make sure everything is OK.
Police had been to the house earlier that evening after reports of fighting and domestic violence.
As officers approached in the dark, they heard a rustling in a bush or a tree. Officer Sheryl Herrera turned on a flashlight and saw Martinez running at them, yelling, “What’s up (expletive). Let’s do this.” He had a baseball bat raised above his right shoulder.
Backer drew his gun, identified himself as a police officer and ordered Martinez to drop the bat. Backer fired two shots when Martinez was 6 feet to 10 feet away, hitting him once in the back.
Martinez said he thought he was defending himself from people he thought were returning to the house to attack him. He had no idea it was police officers who were sneaking up on the house, according to defense lawyers.
Prosecutors did not charge him with a crime against a police officer.
shane@durangoherald.com
