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Don Davis, Forum News Service, Published September 11 2013

Fairbanks asks state high court to overturn conviction for killing Mahnomen deputy

ST. PAUL - Minnesota Supreme Court justices questioned whether they should overturn a murder conviction of a man convicted of killing a deputy sheriff because he is an American Indian whose trial was held in a mostly white county.

During the court’s hearing on Wednesday in the 2009 death of Mahnomen Deputy Christopher Dewey, justices grilled the attorney representing Thomas Lee Fairbanks, who in 2011 was convicted of the crime. He is serving a life sentence.

Chief Justice Lori Gildea said District Court Judge Jeff Remick weighed many factors, ranging from travel in winter weather to concern about Fairbanks’ health, when he opted to keep the trial close to Mahnomen County, where Dewey was shot and killed.

Theodora Gaitas, Fairbanks’ state-funded attorney, claimed Remick made a mistake in moving the trial from Mahnomen County to Polk County, questioned whether Fairbanks could be charged with murder since Dewey died more a year after the shooting, argued a new trial is needed because the judge allowed autopsy photographs to be shown as the trial started and challenged whether enough evidence was submitted to support a conviction.

A high court ruling could take weeks or months.

Wednesday’s discussion centered on the decision to move the trial to Polk County after what Gaitas called “massive prejudicial publicity” that may have tainted the Mahnomen jury pool.

Justices challenged Gaitas’ argument that Fairbanks was unfairly treated because he is Indian.

Polk County’s population is nearly all white, so Gaitas said few American Indians were available to serve on the jury.

One juror identified herself as Indian after the trial, and agreed with other jurors that Fairbanks was guilty.

Several justices expressed doubt about whether moving the case from Mahnomen, with its 40 percent Indian population, violated Fairbanks’ rights.

John Galus from the state attorney general’s office said “it is unfair” to say that the judge did not consider race in deciding where to hold the trial. Pretrial hearings included discussion about holding the trial in Bemidji, with a high Indian population, Galus said.

“No one is arguing that the offense occurred because of race,” Gaitas told justices, reminding them that Dewey was white.

Another Gaitas argument involved the 18 months that elapsed between the shooting and when the deputy died. There is an unwritten judicial understanding, she said, that a murder case cannot be brought if more than a year and a day has passed since the death.

Justice David Lillehaug questioned the reasoning, saying that argument does not fit into how he reads Minnesota law.

Galus said a prosecutor did nothing wrong, as Gaitas alleged, in showing the jury graphic photographs during opening statements. The photos already were approved as evidence, he said, and came up later in the trial.

Fairbanks was convicted of first-degree murder and several other felonies, including four counts of first-degree assault.