February 18, 1976 FBI report:
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. Graham Doc. 04092.
On July 7, 2008 and July 18, 2008, Mr. Graham requested in writing a non-redacted versions of this report so that he could locate, interview, and subpoena the witness. On July 28, 2008, the government responded that the redacted area of the report contained the number of an FBI informant, and that it would not provide the informant’s identity to Mr. Graham.
The name of a witness who saw Aquash alive after the government asserts she was dead is material, exculpatory, and subject to disclosure. The government can not refuse to provide the name based on privilege: An informant’s privilege to remain confidential is not absolute. Roviaro v. United States, 353 U.S. 53, 60-61(1957). If the informant’s testimony will be material to the determination of the case, the informant’s identity should be disclosed. United States v. Lindsey, 284 F.3d 874, 877 (8th Cir. 2002) (citations omitted).
The government and FBI should not be able to hide the name of a witness who says s/he saw Aquash alive months after she was allegedly killed. The name of that witness, even if that witness is a government informant, should be disclosed so that Mr. Graham can fully investigate his defense. Without such disclosure, Mr. Graham is prevented from fully investigating and defending his case, and he will be denied due process.
Dated August 12, 2008.
John R. Murphy