1975 AIM slaying defendant wants trial delay
Carson Walker, The Associated Press
Published Wednesday, January 14, 2009
SIOUX FALLS, S.D. (AP) — Lawyers for the government and one of two men charged with the 1975 [*] slaying of a woman on the Pine Ridge Indian Reservation have until Monday to respond to the other man’s request for another trial delay.
Also, another defense lawyer has asked the judge to dismiss the charges and prosecutors have appealed an earlier ruling.
John Graham and Richard Marshall pleaded not guilty to charges they committed or aided and abetted the first-degree murder of Annie Mae Aquash.
They’re scheduled to stand trial in Rapid City starting Feb. 24.
Marshall was indicted in August, five years after Graham and Arlo Looking Cloud were initially charged.
Looking Cloud was convicted in 2004 for his role in Aquash’s murder and sentenced to life in prison.
Prosecution witnesses accuse Marshall of providing the handgun and shells that Graham used to killed Aquash on orders from American Indian Movement leaders who suspected she was a government informant.
Marshall’s attorney, Dana Hanna, filed a motion Monday asking the judge for at least another two months to prepare because of the large amount of evidence.
The trial likely will include testimony not only of Aquash’s killing but also about AIM, its 71-day occupation of Wounded Knee in 1973, the 1975 slaying of two FBI agents and other events, he wrote.
“This is a complex and unique case, involving extensive pretrial preparation, investigation, and research on questions of law,” Hanna wrote.
The judge gave prosecutors and Graham’s lawyer until Monday to respond to Marshall’s request for a delay.
Meanwhile, Graham’s lawyer, John Murphy, has filed a motion to dismiss all counts in the indictment on grounds the U.S. government does not have jurisdiction because Graham and Aquash were Canadian citizens and members of Canadian tribes.
Murphy made that same argument last year, which led to U.S. District Judge Lawrence Piersol dismissing the indictment three days before Graham was to stand trial.
Prosecutors brought a new indictment against Graham and Marshall and scheduled a new trial for both men in February.
Murphy has since asked that the third count against Graham be dismissed because of the Indian jurisdiction issue, on which the judge has yet to rule, and has now expanded that argument to all three counts in the latest filing.
“In Graham’s case, there is a substantial consequence. If, as he has alleged, neither he or Aquash are Indian, then this Court does not have jurisdiction, and another sovereign will have to decide the matter,” Murphy wrote.
Prosecutors also have made a new filing.
U.S. Attorney Marty Jackley and Assistant U.S. Attorney Mark Salter asked for an oral argument before the 8th U.S. Circuit Court of Appeals on Piersol’s October dismissal of the charge against Graham.
They reiterated the argument that though Graham might not fit the definition of Indian, co-defendant Looking Cloud does, so Graham can legally be tried for Aquash’s killing.
“Looking Cloud’s conviction, long since final on direct review, neutralizes any claim that this murder did not affect Indians,” the prosecutors wrote.
Murphy filed a motion Tuesday to dismiss that appeal on grounds Graham has already been re-indicted.
Murphy urged the appeals court to instead issue an advisory opinion to help Piersol determine if he should grant the motion to dismiss the new indictment.
[ * On February 18, 1976, FBI Agent David Price prepared a memorandum in which he reported that Anna Mae Pictou Aquash was seen in Allen, South Dakota on February 12, 1976. This is two months after the government now alleges she was killed. The witness providing information to Price gave specific information as to the car Aquash was in and the clothes she was wearing.
FBI witness said s/he saw Aquash alive months after she was allegedly killed ]
