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JUDGES URGED TO FREE 18 VIOLENT OFFENDERS

The public could be in danger if federal judges release as many as 18 violent Indians wrongly convicted of federal crimes because the state may not be able to successfully reprosecute the men.

The Indians - most of them murderers, rapists and child sexual abusers - have asked federal judges to release them because their crimes were not committed on federal land.If the judges release them - and a federal magistrate has said they should - some of the men could ultimately go free because the state may not have enough evidence or witnesses to retry the old cases.

Retrying the men would be "difficult and in some cases effectively impossible," the Utah attorney general's office said in a court brief.

"Some of these cases are very old. The victims are no longer around. Some of the evidence may have been destroyed," said Assistant Utah Attorney General Lee Dever.

One of the murder cases is 15 years old. After 15 years, witnesses' memories are faulty and evidence is stale, he said.

If the men go free, the public is in danger because the men won't be supervised by federal parole officers. If the federal government didn't have jurisdiction to prosecute them, it doesn't have jurisdiction to supervise them.

A U.S. Supreme Court ruling in February sharply slashed the perceived boundaries of the Uintah-Ouray Reservation, putting much of the area - including Roosevelt and Myton - under state and local rule. Indians who committed past crimes on that land say that ruling invalidates their federal convictions and they should be released from prison.

Magistrate Ronald Boyce agrees. He has recommended that convicted child sexual abuser Kim Cuch be promptly released from a federal prison. Under the Supreme Court ruling, the federal government had no authority to try him in the first place, he said.

State and federal prosecutors counter with an array of federal cases they believe gives a federal judge authority to keep the men in prison, reasoning that the court ruling applies to present and future cases only.

The trials were fair and the convictions are sound, said Assistant U.S. Attorney David Schwen-di-man. None of the men were denied any of their rights. The crimes they were convicted of are still crimes under state law.

Beyond that, "we need certainty and finality in these cases," he said. "Finality for the victims, finality for the witnesses, and finality for the defendants. There is reason to have these things done with."

Not surprisingly, most of the defendants have said they will forego finality for a chance at freedom.

Most but not all. "One fellow wrote that he didn't want his conviction overturned because he's in a training program in the federal prison and he has nine months to go. But I think most of them would rather take their chances," Dever said.

All of the men must be released from federal prison because they committed no federal crimes, Boyce wrote in his 22-page report and recommendation. The "fact is no federal crime was ever committed, and there is a complete absence of any federal jurisdiction," he wrote.

If Sam adopts Boyce's report, it will create an 18-year void of any jurisdiction on that land, prosecutors say.

Adopting Boyce's recommendation would have the effect of creating a "lawless zone in the area in question," according to the federal prosecutors' brief.

U.S. District Judge Willis Ritter issued an injunction in 1976 barring the state from prosecuting crimes on the disputed land until the federal court could resolve the issue. Under the injunction, only federal attorneys could prosecute Indians on federal charges.

U.S. District Judge Bruce Jenkins ruled in 1981 that the land was federal land, again leaving only the federal government with jurisdiction. The 10th Circuit Court of Appeals upheld that ruling in 1985.

To say the federal government had no authority on that land since the 1976 injunction is to say that no government had jurisdiction, prosecutors wrote.

Despite the mountain of cases cited by Boyce and prosecutors, each side acknowledges that there has never been a case quite like this one before.

The case is unique and extraordinary, according to the federal brief.

"It will probably land in the Supreme Court's lap," Schwendiman said.

While prosecutors wax lengthy, Manny Garcia, the attorney who started this ruckus by requesting Cuch's release, opted for brevity.

When federal and state prosecutors filed more than 40 pages of arguments in opposition to Boyce's report, he filed a one-page response. Neither the state nor the federal government raised any new arguments that Boyce hasn't already rejected, he wrote, so let my client go.

Sam's ruling in the Cuch case will likely serve as a guideline for Utah federal judges ruling in the remaining 17 cases.