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Case tests privilege of medicine men

DENVER -- The FBI improperly forced an American Indian medicine man to discuss what he was told in confidence by a murder suspect, the suspect's attorney contends in a case before a federal judge.

Attorney Robert Duthie said the FBI used the information from the Apache spiritual leader to obtain a videotaped confession from Carlos Herrera, who has been indicted for second-degree murder.

Duthie said he wants evidence linked to the medicine man suppressed. He also said Herrera's confession should be suppressed because his client spoke only after learning the medicine man, Robert Cervantes, 37, had spoken with authorities.

The case raises questions about whether Indian spiritual leaders have the same protection as priests who refuse to give up details of what they hear in confession.

"There is no question in my mind that a Native American spiritual leader should be accorded the same rights as other clergy," said Walter Echo-Hawk, an attorney with the Native American Rights Fund in Boulder. "It would be highly ethnocentric, if not discriminatory, for the federal courts to fail to accord the same privilege to Native Americans."

In court documents reviewed by The Denver Post, federal authorities say Cervantes did not try to assert a clerical privilege when he told them Herrera admitted killing Brenda Chavez, 40, in 2001.

Cervantes is accused of beating her to death and dumping her body near Ignacio on the Southern Ute Reservation in southern Colorado. Both Chavez and Herrera are members of the tribe, which is why the case has federal jurisdiction.

Herrera made "serious, confidential disclosures" to Cervantes, Duthie said in court documents. He said investigators manipulated Cervantes to get the information.

The 3,000-member Jicarilla Apache Tribe recognizes Cervantes as a medicine man or traditional shaman.

Duthie cited no federal case recognizing a medicine man as clergy entitled to confidentiality in a criminal case. However, the Native American Free Exercise of Religion Act of 1993 provides: "Native American traditional leaders shall be afforded the same status, rights, and privileges as religious leaders of Judeo-Christian faiths."

In a court filing, Cervantes said he was unaware he could assert a confidential privilege.

There is no evidence Herrera was trying to receive spiritual guidance from Cervantes, Assistant US Attorney Robert Kennedy said this week.

"To the contrary, it appears that the defendant was looking for more mundane assistance in manufacturing an alibi, destroying potential evidence, and `laying low' for several days to see whether the victim's body would be discovered," Kennedy said.

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