Court rules against government in Aquash murder case November 6, 2009

Court rules against government in 1975 AIM slaying case

The Associated Press | Posted: Wednesday, November 4, 2009

A federal appeals court says it won’t review failed appeals by government prosecutors who want to try a Canadian man for a 1975 slaying on Pine Ridge Indian Reservation.

John Graham of Yukon territory is one of two men charged in federal court in the killing of Annie Mae Aquash. Prosecutors say American Indian Movement leaders suspected that Aquash was a government informant and ordered her to be killed.

A three-judge panel of the 8th U.S. Circuit Court of Appeals earlier upheld a lower court ruling that the government lacked jurisdiction on one of three counts against Graham, because neither he nor Aquash are American Indians. The 8th Circuit ruled Wednesday it would not grant a rehearing before the full appeals court.

Graham and Richard Marshall of Rapid City are charged in federal court with murder and aiding and abetting in the death of Aquash. Graham and Thelma Rios of Rapid City also face state charges of taking part in the kidnapping and killing of Aquash.

March trial date set for Thelma Rios in Aquash case November 6, 2009

March trial date set for Thelma Rios in Aquash case

The Associated Press | Posted: Wednesday, November 4, 2009

RAPID CITY — A March trial date is set in state court for one of the people charged in connection with the 1975 death of an American Indian Movement activist in western South Dakota.

Authorities say 64-year-old Thelma Rios is accused of the kidnapping and premeditated murder of Anna Mae Pictou Aquash.

Convictions on both charges carry a mandatory sentence of life in prison without parole.

Rios remains in Pennington County Jail in lieu of a $250,000 cash surety bond.

Rios and John Graham of Canada face state charges in the case.

Prosecutors have said Aquash was killed because she was a suspected government informant against AIM.

Judge: Federal defendant in AIM slaying case not entitled to state documents November 6, 2009

Judge: Federal defendant in AIM slaying case not entitled to state documents

The Associated Press | Posted: Tuesday, October 20, 2009

A judge ruled that a Canadian man charged in federal court with killing a fellow American Indian Movement activist in 1975 is not entitled to documents from state court on charges filed there.

John Graham’s lawyer argued that grand jury transcripts and an un-redacted indictment should be turned over because they are part of the evidence in the case.

But the judge disagreed, saying there are no grounds for such an order.

Graham and Richard Marshall are charged in federal court with killing or aiding the murder Annie Mae Aquash. That case is on hold. Graham is also charged in state court in Rapid City along with Thelma Rios.

Prosecutors say Aquash was killed because she was a suspected government informant against AIM.

Pennington County Grand Jury indicts two in 1975 AIM slaying September 14, 2009

Photo by" break social control", Coast Salish Territory, Vancouver, October 2008

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Pennington County Grand Jury indicts two in 1975 AIM slaying

By Heidi Bell Gease, Rapid City Journal staff | Saturday, September 12, 2009

A Pennington County Grand Jury has indicted John Graham and Thelma Rios on state charges related to the December 1975 slaying of American Indian Movement activist Annie Mae Aquash.

Graham, 53, and Rios, 64, are both charged with felony murder in relation to kidnapping and with premeditated murder in connection with the shooting death of Aquash, whose body was found on the Pine Ridge Indian Reservation in February 1976. Graham is also charged with felony murder related to rape.

Each count carries a mandatory sentence of life in prison upon conviction.

Graham is already in custody awaiting trial in federal court on similar charges. Rios, who has been a well-known activist in Rapid City over the years, was arrested Wednesday and is being held in the Pennington County Jail on $250,000 bond.

She made her initial appearance Thursday before Magistrate Judge Scott Bogue via video camera from the jail, standing with her arms folded as she listened to the charges against her. Bogue appointed attorney Matt Stephens to represent her.

News of the state indictment came one day after U.S. District Judge Lawrence Piersol agreed to another continuance in the federal case against Graham and Richard “Dickie” Marshall, who were scheduled to go to trial Oct. 7 for Aquash’s murder.

Graham was originally set for trial a year ago, but Judge Piersol dismissed the indictment against him because it did not show that either Graham or Aquash belonged to a federally recognized Native American tribe, which is required for the federal government to have jurisdiction in the case. Graham and Aquash both belong to Canadian tribes.

Graham and Marshall were then re-indicted. But just before their trial in May, Piersol dismissed one of three charges against Graham for the same reason as before. Federal prosecutors appealed Piersol’s decision to the Eighth Circuit Court of Appeals, which upheld Piersol’s ruling.

Now it appears that former U.S. Attorney Marty Jackley, who was prepared to try Graham in federal court, will help prosecute him in state court. Jackley was sworn in last week as South Dakota’s Attorney General, replacing Larry Long who was appointed to a circuit judge seat.

“I think the reality is that what the public expects of either the U.S. Attorney or the Attorney General is to follow the evidence wherever it goes and do their job,” Jackley said of his dual role in the case. “This is a cooperative effort that involves federal, state and local prosecutors to ultimately do what’s right, and that is for justice and to have this thing come to a jury trial and let a jury decide who’s responsible for the Aquash kidnap, rape and murder.”

Assistant Attorney General Rod Oswald will be lead prosecutor in the state case, working with Pennington County State’s Attorney Glenn Brenner.

The latest charges center on incidents that happened in Pennington County in 1975.

During the 2004 trial of Arlo Looking Cloud, who was convicted in Aquash’s murder and is serving a life sentence, Graham’s then-girlfriend Angie Janis testified that Rios called her in Denver and said Aquash was a government informant and needed to be brought back to Rapid City.

Looking Cloud, Graham and Theda Clark then drove Aquash to Rapid City, according to testimony at Looking Cloud’s trial. Prosecutors believe Graham then raped Aquash in Rios’s apartment in Knollwood Apartments.

Federal prosecutors have accused Marshall of providing the gun that was eventually used to kill Aquash. They have not said whether they plan to drop federal charges against Graham, now that he has been indicted in state court.

Jackley said the state would proceed with its case against Graham but that deference would be given to the federal case, which has been pending for some time.

“It will move forward … in all likelihood quicker,” he said.

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Direct link to latest documents for case (updated September 11, 2009)

http://grahamdefense.org/courtdocs/index.htm

Federal appeals court upholds dismissal of charge against John Graham July 29, 2009

Judge dismisses key charge against John Graham in 1975 AIM murder case

By The Associated Press | Tuesday, July 28, 2009

A federal appeals court on Tuesday upheld the dismissal of a key charge against one of two men accused of the 1975 slaying of a fellow American Indian Movement member, opening the possibility he could be tried in state court.

John Graham pleaded not guilty to charges that he killed or aided and abetted in the death of Annie Mae Aquash on the Pine Ridge Indian Reservation.

U.S. District Judge Lawrence Piersol threw out the first indictment against Graham because it did not show that either Graham or Aquash belonged to a federally recognized American Indian tribe. They both belonged to Canadian tribes.

When federal prosecutors re-indicted Graham, Piersol again dismissed a similar charge against him.

The appeals court agreed that both indictments were flawed because they did not prove that either Graham or Aquash were American Indian. Tribal status gives the federal government jurisdiction in the case.

U.S. Attorney Marty Jackley and Graham’s lawyer, John Murphy, argued the case in April before a three-judge panel of the 8th U.S. Circuit Court of Appeals, which filed its unanimous decision affirming Piersol’s dismissal of the charge.

Jackley argued the law does not require Graham to be an American Indian because the third co-defendant, Arlo Looking Cloud, belongs to a federally recognized tribe.

But the appeals court disagreed, saying federal jurisdiction doesn’t extend to an accomplice.

“The counts in both indictments failed to allege Graham’s Indian status, which cannot be cured by an application of aider-and-abettor liability,” they wrote.

Jackley said his office is “evaluating the decision and available options.”

Two charges are pending against Graham, but prosecutors would still have the challenge of showing that either Aquash or Graham were American Indian.

If federal prosecutors opt to not go forth with a trial against Graham, he could be tried in state court, though that would happen only after government lawyers drop the remaining charges, said Attorney General Larry Long.

“It’s still just a little too early to tell. As to the overall question, ‘Does the state have jurisdiction?’ The answer to that, of course, is yes, if the federal courts have determined conclusively that they don’t have jurisdiction,” he said.

Murphy said he and Graham are pleased with the decision and that it’s resolved.

The other man charged, Richard Marshall, last week asked that he be tried separately. He’s pleaded not guilty.

Jurisdiction is not in question with Marshall because he belongs to a recognized tribe, as does Looking Cloud, who was convicted in 2004 for his role in Aquash’s murder and sentenced to life in prison.

Witnesses said Looking Cloud, Graham and Theda Clarke, another AIM member, drove Aquash from Denver and that Graham shot Aquash on orders from AIM leaders who suspected she was a government informant. Prosecutors accuse Marshall of providing the revolver and shells.

Clarke is in her mid-80s and lives in a nursing home in western Nebraska. Graham fought his return from British Columbia for more than four years before he was extradited in December 2007.

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8th Circuit Decision
US v. Graham (July 28, 2009):

http://www.ca8.uscourts.gov/opndir/09/07/083580P.pdf

Government appeals against Graham combined into one May 20, 2009

1975 [or '76] Pine Ridge slaying appeals combined into one

Associated Press – May 20, 2009

SIOUX FALLS, S.D. (AP) – Two appeals pending over the 1975 [or '76]  killing of a Canadian woman on the Pine Ridge Indian Reservation will move forward as a combined case.

John Graham and Richard Marshall were set to stand trial last week in Rapid City on charges they committed or aided and abetted the murder of Annie Mae Aquash (AH’-kwash).

But the judge delayed it until the 8th U.S. Circuit Court of Appeals rules on whether 1 of the counts against Graham should have been dismissed.

U.S. Attorney Marty Jackley appealed the dismissal of that charge that is similar to a count that was thrown out from an earlier indictment, which he also appealed.

Instead of handling both appeals separately, the 8th Circuit filed an order Tuesday granting a request to consolidate them.

Week away, Aquash trial stalled by appeal May 6, 2009

Week away, Aquash trial stalled by appeal
Federal jurisdiction: Graham’s tribal affiliation question may send his trial to state court.

By Heidi Bell Gease, Rapid City Journal staff | Wednesday, May 06, 2009

A trial into the death of Annie Mae Aquash more than 33 years ago was delayed indefinitely Tuesday, a week before its scheduled start.

John Graham and Richard “Dickie” Marshall were to go on trial May 12 in Rapid City for the December 1975 slaying of Aquash, whose body was found on the Pine Ridge Indian Reservation in February 1976.

But U.S. District Judge Lawrence Piersol delayed the trial until a higher court rules on an appeal over his dismissal of one of three counts in the indictment against Graham.

Prosecutors and Marshall’s attorney had filed a joint motion requesting a 60-day continuance, but Piersol said he would not set a new trial date until after a ruling from the 8th U.S. Circuit Court of Appeals.

Last week, Piersol dismissed an aiding and abetting charge against Graham because neither he nor Aquash belong to a federally recognized tribe, which is required for the federal government to have jurisdiction in the case. Graham and Aquash are from Canadian tribes. U.S. Attorney Marty Jackley is appealing the dismissal.

Days before Graham was to stand trial last October for Aquash’s murder, Piersol dismissed the indictment against him for the same reason. Graham was then re-indicted along with Marshall.

Graham’s attorney, John Murphy, said Tuesday his client was “ready, willing and able” to go to trial May 12 on the remaining two counts of the indictment. But Jackley said that could create problems of double jeopardy if Graham were acquitted of two counts, then later tried on the third count, which is based on the same underlying offense.

It’s possible that Graham could end up being charged in state court instead. The state has jurisdiction over crimes on reservations that do not involve Native Americans.

Graham and Arlo Looking Cloud were first indicted for murder in 2003. Looking Cloud, who is Lakota, was convicted in 2004 for his role in Aquash’s death and sentenced to life in prison. He is now a government witness. Graham fought extradition from Canada and was not brought back to South Dakota until last year.

Marshall, a Lakota from Pine Ridge, was indicted last August. Hanna said he may renew his request that Marshall be tried separately if the appeals court does not rule on the matter within 60 days.

Prosecutors believe Marshall gave a .32-caliber revolver and shells to Graham, Looking Cloud and Theda Clarke when they stopped at Marshall’s home with Aquash hours before she was shot because American Indian Movement leaders believed she was a government informant.

Clarke, who lives in a Nebraska nursing home, has not been charged. Her attorney has filed a motion asking that Piersol quash a subpoena calling her to testify, on grounds that she is incompetent due to various medical ailments including dementia.

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http://grahamdefense.org/courtdocs/index.htm

John Graham’s lawyer asks for trial to proceed on May 12 May 2, 2009

John Graham’s lawyer asks for trial to proceed on May 12

A judge has called for a hearing on Tuesday, May 5, on whether to split John Graham and Richard Marshall’s trials, but Graham’s lawyer is asking for his client’s trial to proceed on May 12 either way. Graham’s lawyer has also asked for counts one and two against Graham to be severed from count three, which the same judge earlier dismissed. The government has appealed the dismissal.

“Considering the likelihood that the charges against Graham in Counts I and II of the Superseding Indictment will need to be dismissed at trial, counsel should be prepared on next Tuesday afternoon to argue whether or not the decision to deny a severance of the trials should be revisited, with the trial of Richard Marshall to proceed first.”

- Judge Lawrence L. Piersol

“We may not know and be able to prove beyond a reasonable doubt who actually pulled the trigger.”

- Government Attorney Marty Jackley, arguments to 8th Circuit Court of Appeals on April 15, 2009

Graham’s lawyer:

http://grahamdefense.org/courtdocs/333-16511080711.pdf

Judge Piersol’s order:

http://grahamdefense.org/courtdocs/304-16511079159.pdf

Key charge against John Graham dismissed April 30, 2009

Key charge dismissed in 1975 slaying of Canadian activist

The Canadian Press
April 30, 2009

SIOUX FALLS, S.D. — A judge in South Dakota has dismissed a key charge against one of two men accused in the 1975 slaying of a Canadian woman active in the American Indian Movement.

A hearing is now scheduled for Tuesday on whether the men should be tried separately.

John Graham and Richard Marshall are scheduled to stand trial May 12 in Rapid City on charges they committed or aided and abetted the murder of Annie Mae Aquash, of Nova Scotia.

U.S. District Court Judge Lawrence Piersol dismissed one of three counts against Graham because he and Aquash did not belong to American Indian tribes when she was killed.

The judge says if prosecutors can’t prove to jurors that either Graham or Aquash was part Indian, the other two remaining charges against Graham will likely be dismissed, though he could be tried in state court.

Judge denies motions in Annie Mae Aquash murder case April 30, 2009

Judge denies motions in Annie Mae Aquash murder case

By Heidi Bell Gease, Rapid City Journal staff | Wednesday, April 29, 2009

The Bureau of Indian Affairs does not have to disclose information on any investigation of what a defense attorney says was an improper relationship between a government informant and the lead investigator in the 1975 slaying of American Indian Movement activist Annie Mae Aquash, a judge has ruled.

U.S. Magistrate Judge Veronica Duffy also denied a request by Richard “Dickie” Marshall’s defense attorney asking that federal prosecutors provide inmate records for Arlo Looking Cloud, who was convicted in 2004 of Aquash’s death and is serving a life sentence.

Marshall, 57, and John Graham, 52, are scheduled to go on trial in U.S. District Court May 12 for the murder of Aquash, whose body was found on the Pine Ridge Indian Reservation in February 1976.

According to federal court documents, prosecutors say they don’t have inmate files for Looking Cloud, nor do they have evidence of any complaint or investigation of alleged misconduct between former U.S. Marshall Robert Ecoffey and a female witness with the code name “Maverick.”

Duffy wrote that prosecutors are not required to obtain documents for the defense if those agencies are not acting on behalf of the government.

Defense attorney Dana Hanna had also requested records regarding what he called an “improper relationship” between Ecoffey and Maverick, saying that evidence of an investigation or sanctions would “impeach the credibility of Ecoffey and the integrity of the government’s investigation of the facts of this case.”

Duffy denied the request, writing that “the key fact which has the possibility of reflecting on the credibility of the witnesses is the fact of the relationship itself, not any action that may have been taken by Mr. Ecoffey’s employer when faced with evidence of the relationship at some later date.” Hanna can cross-examine Ecoffey regarding the issue, she said.

Duffy will allow defense attorneys to review Maverick’s criminal record. The trial court would then determine whether any information on that criminal record is admissible at trial.

If convicted Marshall and Graham face life in prison.