Navajo prosecutor files charge in toddler's death

By Felicia Fonseca
Flagstaff, Arizona (AP) June 2011

Nearly three years after a toddler died on the Navajo Nation, the tribal prosecutor has accused the girl's mother of killing her and filed a homicide charge.

The complaint against Kiara Harvey's mother, Norena Joe, was filed in tribal court in Shiprock, N.M. The charge came just three days before the tribe's statute of limitations expires in the case.

Joe reported her daughter's death on June 6, 2008 in Cove, Ariz. Tribal police responded to the call, but tribal prosecutors did not initiate a case until Friday.

A medical examiner ruled Kiara's death a homicide and said she had been beaten. The little girl's skull was swollen, and she had hemorrhages around her brain.

Her case was one of 37 that federal prosecutors declined to take from the Arizona portion of the Navajo Nation in a 9-month period last year, according to an Associated Press review of all 122 letters sent to Arizona tribes during the period.

Kiara's case was featured in an AP IMPACT story, which examined the Arizona cases as a window into a much larger study of U.S. Department of Justice records. That study, by the Government Accountability Office, showed that 50 percent of crimes nationally from Indian Country were declined by federal prosecutors during 2005-2009.

The federal government and the tribes have concurrent jurisdiction in crimes where the suspect and victim are both American Indian. But only federal prosecutions result in much more serious penalties. The FBI investigated Kiara's death and turned the case over to federal prosecutors 19 months after she died.

U.S. Attorney Dennis Burke's office declined the case. Burke told the AP that Kiara's death was “really a disturbing situation,” but that there was no reasonable chance of conviction. The medical examiner who performed the autopsy said he couldn't determine whether the girl was in her mother's or father's care at the time she sustained fatal injuries.

Both of Kiara's parents denied any abuse. Joe did not return a message left this month by the AP.

If Joe is convicted in the tribal case, the maximum sentence would be one year in jail. A federal conviction could have meant life in prison.

At one point, Joe told investigators that she accidentally rolled over onto her daughter in bed, smothering her. Family and friends interviewed by the FBI offered other potential causes for the head injury. Those included Kiara falling off a swing, a bed and a pickup truck, according to records obtained by the AP through a Freedom of Information Act request.

Navajo chief prosecutor Bernadine Martin said that securing a conviction in federal court can be more difficult than in tribal court. Among the witnesses on her list are tribal police, FBI agents and members of the girl's family.

Martin wrote to the FBI shortly after Burke's office rejected the case, saying she wanted to try it in tribal court. The FBI quickly turned over evidence it gathered to tribal police.

That type of response is what Burke has advocated since taking office in late 2009. He has pushed for systematic changes to improve communication with tribal officials and help bolster justice.

Burke's mandate that every case referred from tribal lands have a 30-day turnaround came ahead of a national law that requires federal prosecutors to explain declinations to tribal authorities and provide evidence that could be used in tribal court to prosecute the case.

Arizona declined 38 percent of the cases it received, while the only other equally large district, South Dakota, declined 61 percent, during the period covered by the GAO study.

Burke's staff has also been recognized by the DOJ for developing a comprehensive public safety program in Indian Country. Joint federal-tribal investigations in drug cases have led to dozens of indictments, and the office trains tribal police to be certified as federal agents.