Accused wants evidence limits in 1975 SD AIM case

AIM slaying prosecutors turn over evidence details
By Carson Walker
Sioux Falls, South Dakota (AP) 9-08

The lawyer for John Graham has filed motions asking a judge to keep jurors from hearing statements he made to a medicine man and allegations he raped Annie Mae Aquash before she was killed in December 1975.

Graham’s first-degree murder trial starts Oct. 6 in Rapid City federal court for the slaying of Aquash, a fellow Canadian citizen and member of the American Indian Movement, on the Pine Ridge Reservation.

He’s one of three AIM members indicted. Arlo Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term for his role. Richard Marshall has pleaded not guilty to aiding and abetting.

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

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

Graham has denied killing Aquash, though he acknowledged being in the car with her from Denver.

Graham defense attorney John Murphy wants the judge to prevent prosecutors from presenting to jurors any statements Graham made to medicine men or spiritual leaders, or of his responses to investigators about those statements.

Murphy wrote that use of them would violate the “priest-penitent privilege” and be unconstitutional because they’ve not been challenged through cross-examination.

The motion stems from a conversation Graham supposedly had with medicine man Al Gates, who has since died.

“The conversations at issue came when Graham was allegedly seeking spiritual advice and assistance from Gates,” Murphy wrote.

“Though Gates may have violated the privilege by speaking to law enforcement, Graham did not waive privilege and he should remain protected by it.”

Murphy filed another motion to keep a rape allegation out of the trial.

raham can’t be charged with sexual assault because the statute of limitations has expired. But U.S. Attorney Marty Jackley and Assistant U.S. Attorney Bob Mandel earlier filed notice that they plan to introduce such evidence on grounds it supports the murder charge.

According to that document, Graham and others abducted Aquash in Denver, tied her hands with rope, put her in the hatch of Clark’s red Ford Pinto and drove her to Rapid City, where Graham sexually assaulted her.

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

The prosecutors earlier wrote that the first autopsy supported the allegation that Aquash had been sexually assaulted, but an FBI report indicated no blood or semen was found on her underwear, suggesting a DNA match was unlikely.

Murphy obtained a court order to test Aquash’s underwear for DNA evidence that could point to someone else but it did not.

In his new motion, he wrote that the rape allegation is not supported by forensic or other evidence, is not reliable, would do more to prejudice the jury than lend proof to the government’s case and cannot legally be allowed.

“This evidence should not be admitted because, at this time, there has been no credible showing that the accusation is anything more than unsupported hearsay,” Murphy wrote.

The defense lawyer filed a third motion to limit testimony about other so-called hearsay statements.

Witnesses testified at Looking Cloud’s trial that they heard Aquash or other people say AIM leaders accused her of being a government informant.

Murphy’s motion asks that such testimony not be allowed at Graham’s trial because it violates his right to confront witnesses and right to not be convicted on hearsay evidence.