Feds: Aquash was bound and raped before 1975 execution

By Paul DeMain
Sioux Falls, South Dakota (AP/NFIC)

 
John Graham

Federal prosecutors want jurors in the upcoming trial of a Canadian man to see evidence that he sexually assaulted Annie Mae Pictou Aquash, bound her hands and kept her in a Ford Pinto's hatch before shooting her.

John Graham's first-degree murder trial starts Oct. 6 in Rapid City federal court for the December 1975 slaying of Aquash, a fellow Canadian, on the Pine Ridge Reservation.

Both were American Indian Movement members, as was Arlo Looking Cloud, who was convicted in 2004 and sentenced to a mandatory life prison term for his role.

Witnesses at his trial said he, Graham and another AIM member, Theda Nelson Clark, drove Aquash from Denver and that Graham shot Aquash in the Badlands as she begged for her life.

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Theda Clark

Clark has not been charged. She lives in a nursing home in western Nebraska.

Six federal grand juries have heard evidence in the case since 1976, including testimony that top leaders in the American Indian Movement were consulted and part of events that led to her execution. The most recent Grand Jury, held during early August 2008, heard testimony from prominent members of the Movement who have been named repeatedly as suspects in the case over the last 35 years.

Over 20 other members of the American Indian Movement have made appearances or been called (subpoenaed) to grand juries, amongst them are Harry David Hill, Troy Lynn Yellowood Irving, Jeanette Eagle Hawk, Angie Begay Janis, William (Bill) Means, Sam Loudhawk, Sugar Bear Martin, Raymond Handboy, Cleo Marshal Gates, Richard Marshal, Frank Dillon, and Sue Casper.

Dennis Banks, Clyde and the late Vernon Bellecourt were not called because they were considered "subjects of interest" in the investigation. Russell Means provided testimony to a grand jury in 1999 after criticizing the federal government for not calling him during a 1999 Denver, Colorado press conference.

The status of his Mean's brother, Ted Means, and his sisters, Madonna Gilbert and Lorelie DeCory, all subjects of the federal probe is unknown.

John Trudell, Matheline Whitebear, and Richard Two Elk former members of AIM are assumed to have testified before a grand jury in 2001 and again publicly in 2004 during the trial of Arlo Looking Cloud. Trudell was National AIM Chairman in 1975.

The follow people testified in the 2004 trial of Arlo Looking Cloud. Their names are linked to their testimony in the case: Nate Merrick, James Glade, Don Dealing, John Munis, Dr. Gary Peterson, William Wood, Evan Hodge, Kimberly Edwards, Darlene Nichols, Mathalene White Bear, Bob Riter, Raymond Handboy, Joan Decker, Angie Janis, Troy Lynn Yellow Wood, Denise Pictou, Candy Hamilton, Jeanette Eagle Hawk, Cleo Gates, Richard Two Elk, John Trudell, Robert Ecoffey, part one, Robert Ecoffey, part two, and David Price.

Leonard Peltier's former attorney, and activist lawyer Bruce Ellison of Rapid City, S.D., plead the fifth amendment when called before a Grand Jury according to court testimony (Hamilton bench conference)in the 2004 trial of Arlo Looking Cloud. Ellison originally avoided being called by claiming he was the attorney for Aquash. That honor went to Sioux Falls, South Dakota attorney Robert Riter Jr., who was Aquash's attorney in 1975 and who also claims an attorney-client relationship yet today, to avoid either testimony or statements to the press.

Graham has denied killing Aquash, though he acknowledged being in the car with her from Denver, Colorado to her alleged execution site in Wanblee, South Dakota.

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Richard Marshal

A third AIM member, Dick Marshall, was indicted by a federal grand jury on August 20, arrested and pleaded not guilty to aiding and abetting first-degree murder on August 26. Marshal served as the personal AIM body guard of Russell Means in 1975.

U.S. Attorney Marty Jackley and Assistant U.S. Attorney Bob Mandel filed notice Aug. 29 that they plan to introduce evidence into Graham's trial supporting the charge that Graham killed Aquash. The motion and intent to introduce the evidence appears to be an attempt to tie Graham to his own set of motives for participating in her murder.

The statute of limitations prevents federal prosecutors from charging Graham with crimes related to the evidence.

Prosecutors wrote that Graham and other people abducted Aquash from Troy Lynn Yellow Wood's house in Denver, tied Aquash's hands with rope and put her in the hatch of Clark's red Ford Pinto.

Aquash was kept there against her will on the drive to Rapid City and then to the Rosebud and Pine Ridge reservations, the prosecutors wrote.

And while guarding Aquash in an empty apartment in Rapid City owned by Thelma Conroy Rios, Graham sexually assaulted her, according to the document.

Jackley and Mandel argued in their notice that federal rules would allow the introduction of the evidence because it is connected to the case, explains the circumstances of the crime and proves elements of the crime.

"Defendant's actions with respect to the abduction and aggravated sexual abuse of the victim go directly to defendant's intent and premeditation, which is an element of the offense. It is further evidence of the victim's state of mind.

"Indeed, evidence of defendant's contact immediately before, during, and after the murder is admissible as part and parcel of the entire transaction and is such indicative of his intent to commit and ultimately carry through with committing and aiding and abetting in first degree murder," the prosecutors wrote.

A rancher found Aquash's body Feb. 24, 1976, north of Wanblee.

The first autopsy found strong acid phosphate in the vagina, which "does constitute evidence in support of the allegation that defendant John Graham raped the victim at Thelma Rios' apartment on or about December 10-11, 1975," Jackley and Mandel wrote in an earlier motion.

Graham's lawyer, John Murphy, obtained a court order to test Aquash's underwear for DNA evidence that he said could point to someone else. That testing is being done.

Prosecutors earlier included in the court file a FBI report indicating no blood or semen was found on the panties.

According to witnesses now cooperating with federal authorities that were interviewed by News From Indian Country over eight years ago, Richard Marshal admitted to them that Aquash was provided with, or forced at some point to to change her clothes after being at Marshall's, Allen, South Dakota home on or around December 12, 1975, a couple of hours before she was executed.

Carson Walker of the Associated Press contributed to this article.

Link to the Aquash Investigation Index Page

Link to Articles about Aquash Murder case

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