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Medicine man same as priest
DENVER Durango lawyer Bobbie Duthie is hoping to make new law.
Duthie is trying to convince a federal judge that an
American Indian medicine man should have the same rights as a priest or
other clergy when it comes to statements made in the confessional.
By law, priests cannot be compelled to testify against
their parishioners under certain circumstances. Doctors and lawyers have
a similar "privilege" not to reveal intimate details of their
The legal question is all part of Duthie's defense of
Carlos Herrera, who faces murder charges in the 2001 death of Brenda Chavez.
"Within the federal courts throughout the United
States, the clergy-communicant privilege is a recognized privilege,"
he said. "In the 10th Circuit (which includes Colorado), they have
mildly recognized it. So I asked the court to recognize the clergy-communicant
privilege, and I asked the court to recognized that medicine men are entitled
to that privilege."
Shortly after Chavez's disappearance, Herrera, 30, a
member of the Southern Ute Indian Tribe, allegedly told medicine man Robert
Cervantes, a member of the Jicarilla Apache tribe, that he had beaten
and choked Chavez to death on Feb. 10, 2001, according to court records.
Chavez's body was found three months later near a gravel
pit off County Road 321, about 1½ miles east of Ignacio. The case
had gone unsolved until earlier this year, when prosecutors charged Herrera
with second-degree murder.
Chavez, who lived in Aztec, allegedly was having an extramarital
affair with Herrera, who has a wife and three children in Ignacio. Shortly
before her death, Chavez had become pregnant and recently had an abortion,
according to court records.
At a hearing before U.S. District Judge Marcia Krieger
this week to suppress evidence in the case, Duthie argued that because
of the religious nature of Cervantes' relationship with Herrera, he should
not be compelled to testify.
Krieger is expected to issue a written ruling on the
matter in the next few weeks.
U.S. Assistant Attorney Robert Kennedy, however, said
Cervantes' relationship with Herrera was more like that of a father and
son than a priest and parishioner.
"At no time did Robert Cervantes tell (investigators)
or the grand jury that the defendant was seeking spiritual advice or consultation
from Robert Cervantes at the time that (Herrera) made incriminating admissions
to Cervantes," Kennedy said in a brief to the court.
Kennedy also said the medicine man's testimony should
be admissible because Herrera's statements to Cervantes did not occur
during a religious ceremony and because Cervantes did not consider them
confidential. He told others what Herrera told him.
Cervantes' roommate at the time of Chavez's death, Craig
Cervantes, testified this week that the medicine man told him of Herrera's
confession. Craig Cervantes is not related to the medicine man.
The roommate said he didn't report the crime because
he feared for his life and that of this 12-year-old son. He also said
that Cervantes didn't report it either because he wanted to protect Herrera.
"Because of his closeness to Carlos Herrera, he
wanted to protect him," the roommate said. "He doesn't call
anyone else son."
It was Craig Cervantes who reported to the FBI his conversations
with the medicine man that led investigators to Herrera.
Kennedy argued that Cervantes didn't report the crime
based on any religious reasons. In cross-examination of the medicine man,
he asked why he didn't reveal what he knew.
"Because the FBI has a bad rep among the Indian
people," Cervantes testified.
At the urging of Robert Cervantes, Herrera ultimately
confessed to the FBI, according to court records.
Duthie is also asking the judge to throw out that confession,
saying Herrera was not properly advised of his rights.