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OVERTURNED

OSCAR BRAVE EAGLE WINS A NEW TRIAL ON A RAPE CHARGE AFTER CLAIMING HIS LAWYER WAS INCOMPETENT.

Native American spiritual leader Oscar Brave Eagle, convicted last year of raping a female colleague, has been granted a new trial. Brave Eagle, a sexagenarian Lakota Indian, was granted a second chance to plead his case when a Larimer County judge agreed in March that his lawyer in the first trial did not adequately represent him.

Last year a jury determined that Brave Eagle used physical violence to sexually assault Kayla Moonwatcher ("Bad Medicine," July 27, 1994). But sentencing was delayed pending a hearing on Brave Eagle's complaints about the handling of his case. A new trial has been scheduled for August.

Lawyer David Mahonee of Lakewood, who represented Brave Eagle in the first trial, said before the March hearing that he was not privy to Brave Eagle's assertions regarding his performance. "There is more to this," he said, but added that he could not comment until after the hearing. However, he did not return calls from Westword last week.

Joseph "Andy" Gavaldon of the Colorado Public Defender's Office in Fort Collins, who now represents Brave Eagle, describes Mahonee as "a young lawyer with good intentions and no experience." Gavaldon adds, "This is the first time ineffective assistance of counsel has overturned a case in Larimer County courts in nineteen years."

Gavaldon argued that Mahonee was trying his first-ever criminal jury trial and had done no pretrial investigation or preparation. He also contended that Mahonee didn't make clear to his client that, shortly before the trial began, Brave Eagle was offered a deferred sentence.

According to Gavaldon, Mahonee made no attempt during the trial to impeach Moonwatcher's testimony. At the March hearing, Gavaldon produced a witness who testified that Moonwatcher said the incident with Brave Eagle may have been a "dream."

Brave Eagle is the president of White Mountain Eagle Inc., a Colorado nonprofit organization that sponsors Native American sun dances near Morrison. Soon after moving to Denver from the Pine Ridge Lakota reservation in South Dakota about three years ago, he teamed up with Moonwatcher, who was already doing some native ceremonies, to run sweat lodges, perform house blessings and pipe ceremonies and offer spiritual guidance--mostly for whites.

In a July interview with Westword, Moonwatcher, then 38 years old, said she and Brave Eagle did not charge for the ceremonies, but they did accept "gifts" that included money.

Moonwatcher claims to be of Lakota and Cherokee descent. She adopted the name Moonwatcher, which she says was given to her in a dream by her deceased Lakota grandmother, whom she had never met.

Members of White Mountain Eagle Inc., some of whom are also white, insist that Moonwatcher is a white "Indian wannabe" who, rather than being raped, seduced Brave Eagle to bolster her claims to an Indian heritage and right to perform native ceremonies.

Moonwatcher, who continues to perform ritual Indian ceremonies, has objected to her portrayal in Westword; she claims it made her appear to be a "loony new-ager."

The case does contain overtones of complaints about wannabes horning in on Native American rituals. After Moonwatcher complained to authorities, Brave Eagle denied her allegations, saying that not only was their sexual activity consensual but that Moonwatcher and an associate were charging money for performing ceremonies they weren't qualified to run. "The allegations she is making about me are wrong," Brave Eagle wrote to a Larimer County sheriff's investigator, "and the community respects me, and I am a traditional Lakota."

But authorities apparently believed Moonwatcher's version of events. In February 1992, Moonwatcher claims, she was preparing for a ceremony in which Denver medicine man David Swallow would bless her spirit name, Whirling Rainbow Woman. They also had planned a ceremony in which Brave Eagle would adopt Moonwatcher as his spiritual granddaughter.

Moonwatcher told police that she went with Brave Eagle to a field near Lyons to set up a sweat lodge for the ceremonies. After completing the task, she says, he tried to get intimate and they struggled. She says she blacked out and that when she came to, Brave Eagle was raping her. Brave Eagle told police that Moonwatcher had dressed provocatively and had initiated consensual sex.

Moonwatcher waited nearly two years to complain to authorities. It was only after Brave Eagle refused to apologize or make amends, she said, that she reluctantly pressed charges.

"I wanted to do this the Lakota way," she says. "I didn't want to go through the white criminal-justice system. But in the end, I had no choice."

That legal system rarely takes the action it took in this case, according to Vicki Koury, head of the Criminal Law Section of the Colorado Bar Association.

Koury says defendants must show not only that a lawyer's performance fell below "an objective standard of reasonableness," but that it was so bad that it actually changed the result of the case. For example, she says, in a murder trial during which the prosecution proved its case, it would not have affected the outcome if the defense lawyer had done a poor job.

During her eight years as the head of the public defender's office in Jefferson County, Koury says, there were only two reversals of major cases due to ineffective assistance of counsel.

 
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