Guilty again in rape case
Jury convicts medicine man

By Bill Donovan
Staff Writer

GALLUP — For the second time in four years, a Gallup jury has convicted Navajo medicine man Herbert Yazzie Sr. of raping a 27-year-old female who had come to him for a ceremony to protect the baby she was expecting to deliver.

The woman, who was related to Yazzie through marriage, may have been the key witness this time as she was in 2003 when Yazzie was found guilty of second degree rape and was sentenced to 18 years in prison.

Everyone thought at that time the next time Yazzie would be heard of was when he was released.

But the state court of appeals overturned that verdict and ordered a new trial.

This case began back in April 2000 when the woman wanted to have a twining ceremony to provide protection for the third child she was expecting. At the time she was almost nine months pregnant.

In her testimony in both the first and second trials, she said that Yazzie, 55, after holding a short ceremony with friends and family, said he would have to take her alone up to Hamburger Hill in the Mentmore area where the woman said he started making sexual advances, saying that he was not getting any sex from his girlfriend.

She declined but said Yazzie directed her to his car where he raped her, after which he told her, she testified, not to tell anyone or he would destroy her.

But her ordeal was just starting.

McKinley County District Attorney Karl Gillson said the rape victim then went through three years of trying to get someone to prosecute the case.

There was a problem, he said, because of the location she said the rape occurred and the question of who had jurisdiction. When she went first to the Navajo Nation, officials declined to prosecute because they decided that the land was not tribal land.

The case was then turned over to the state police and Gillson said he became involved more than two years after the woman first began claiming she was raped.

By that time, he said, the woman was still feeling the affects of what happened to her on Hamburger Hill.

"She had a great deal of mental distress and her husband said her behavior had changed," Gillson said.

Her manner of dress changed and she dressed in clothes that showed no skin. She also became impatient and argumentative.

The first Gallup jury saw her anguish and convicted Yazzie. But the court of appeals ruled that the judge in that case, District Court Judge Joseph Rich, went too far in one of his statements.

Robert Aragon, who was Yazzie's attorney in the first case, was cross-examining the victim and was trying to get her to draw a sketch showing her position in the car at the time of the alleged rape.

She refused time after time and Rich finally told Aragon to stop, saying that "this woman has suffered enough and had gone through enough trauma."

The court of appeals ruled that this statement gave credibility to the witness and was unfair to Yazzie.

Gillson said "his heart sunk" when he heard that the conviction had been overturned because the victim would be forced to go through the trauma of a trial again.

In fact, Gillson said, her husband testified that when she heard that the conviction was overturned, the anguish she felt after the rape returned.

The second trial took five days and Yazzie chose not to testify this time. In the first trial, he took the stand and testified that the rape had never occurred.

As in the first trial, Gillson called a Native American Church roadman and a traditional medicine man who testified that the twining ceremony does not include having the woman go alone with the medicine man up a hill for a private session.

The ceremony, they said, is done with friends and relatives taking a part in all aspects of the ceremony.

The second trial took five days, and Yazzie's attorney, Steve Seeger, called several witnesses - members of Yazzie's family - who testified that the Herbert Yazzie they knew could not have done what the woman claimed he had done.

The jury only took two hours to come back with a conviction.

But Yazzie doesn't face 18 years this time but a maximum of nine years.

In his first sentencing, Rich tacked on an enhancement amounting to one third of the sentence. Since then, however, the U.S. Supreme Court, in another case, ruled that these enhancements were unconstitutional.

In the first trial, Yazzie was also convicted of false imprisonment, which was also taken off the table because of another court ruling, so the most he faces is nine years and Gillson said he will be asking for the maximum.

Yazzie will also be given credit for the time he has already spent behind bars - some four years.