Federal court allows man to challenge murder conviction

By Ben Neary
Cheyenne, Wyoming (AP) 4-08

A federal appeals court says that a Northern Arapaho man convicted in state court of murder in the 2004 beating death of his daughter should be allowed to make a new argument claiming that the state lacked jurisdiction over the killing because it occurred in “Indian Country.”

In a ruling filed with the Circuit Court of Appeals in Denver said Andrew John Yellowbear Jr. is entitled to make another pitch in federal district court in Wyoming that he shouldn’t have been prosecuted by the state. The Denver court sent the case back to U.S. District Judge Clarence Brimmer of Cheyenne to hold another hearing if Yellowbear wants to raise the issue again.

Lawyer Barry Bachrach of Leicester, Mass., represents Yellowbear in his federal appeal. Bachrach also has done legal work for Indian activist Leonard Peltier, now serving two consecutive life sentences for the deaths of two FBI agents during a 1975 standoff near Oglala, S.D., on the Pine Ridge Indian Reservation.

Bachrach said that Yellowbear, now serving a life sentence in state prison, will want to press his case in Brimmer’s court as soon as he can.

If Yellowbear wins his jurisdictional argument, Bachrach said Yellowbear will probably ask to be released from custody pending a decision by federal prosecutors whether to prosecute him in federal court.

“I think that to my client, the issue is extremely important because he feels that he would get a fairer trial in the federal court, and it would give him a chance to prove his innocence in a forum not only of his choice, but a forum where he belongs,” Bachrach said.

Twenty-two-month-old Marcela Hope Yellowbear died at a hospital in 2004 after suffering a skull fracture, broken arm, burns to her fingers and other injuries. Prosecutor Ed Newell, Fremont County attorney, called the girl’s injuries the “worst case of child abuse anyone has ever seen.”

The girl’s mother, Macalia Blackburn, pleaded guilty to being an accessory to second-degree murder and was sentenced to 60 years in prison.

Yellowbear first asked Brimmer to intervene in his case on the jurisdictional issue before it went to trial in state court. Brimmer denied his request, saying Yellowbear could seek federal review of his case if he were convicted.

Yellowbear was convicted of murder in 2006. The Wyoming Supreme Court upheld Yellowbear’s conviction in January, finding that Riverton is not part of Indian Country for legal purposes.

The Wyoming Supreme Court ruled that the town was ceded from the Wind River reservation in a 1905 treaty deal with the Northern Arapaho and Eastern Shoshone tribes called the Land Surplus Act.

The Wyoming Attorney General’s Office represented the state in the federal appeals court proceeding.

Wyoming Attorney General Bruce Salzburg said Tuesday that the federal appeals court ruled on a technical issue regarding which section of federal law Yellowbear is required to use to try to raise his jurisdictional issue. One section allows a person to challenge the charge against them before they go to trial, while another section allows them to challenge convictions after trial.

Salzburg said the appeals court ruling means that Brimmer will look at the question of whether the state court had jurisdiction to prosecute Yellowbear. He said the answer to that will depend on the judge’s decision of whether Riverton is part of Indian Country.