Prosecutors in 1975 AIM slaying argue to show evidence Canadian victim was raped

A judge has been asked to decide whether the jury in the murder trial of John Graham can hear evidence from several witnesses that he raped Canadian aboriginal activist Annie Mae Aquash before allegedly shooting her to death three decades ago.

In a court filing, federal prosecutors claim they are legally entitled to show jurors testimony that Graham, also a Canadian, acknowledged the rape to other witnesses.

Graham's trial on a charge of first-degree murder in the 1975 slaying of Aquash, a Mi'kmaq from Pictou, N.S., and a fellow member of the American Indian Movement, starts Oct. 6 in federal court in Rapid City, S.D.

He's one of three AIM members indicted. One of them, Arlo Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term. The other, Richard Marshall, is scheduled to go on trial Feb. 24 in Sioux Falls on a charge of 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 of the Pine Ridge Indian Reservation 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.

He can't be charged with sexual assault because the statute of limitations has expired.


But federal prosecutors Marty Jackley and 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 they allege 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.

But Graham's lawyer, John Murphy, filed a motion asking the judge to keep the rape allegation out of the trial, arguing it isn't supported by evidence, isn't tied to the murder charge and would do more to prejudice the jury than prove the government's case.

Jackley and Mandel filed a memorandum this week disagreeing on all points.

According to that document, witness Frank Dillon told a detective in 1998 that Graham acknowledged raping Aquash before he shot her in the head as she prayed.

Dillon said he thought the gun was a .38-calibre pistol, which is consistent with what the second autopsy found as the likely weapon used. And the autopsy also found evidence consistent with Aquash being raped shortly before her death, according to court documents.

"It was a 38, I think. It was a pistol," Dillon said in the interview before pausing. "He (Graham) also told me that she started praying before it happened. That he had raped her."

That and other evidence would provide jurors a full context of the killing and outweigh any negative prejudicial effect, Jackley and Mandel argued.

"It explains the circumstance surrounding her murder including the victim's state of mind and provides additional motive for defendant Graham. It further tends logically to prove premeditation and malice aforethought, necessary elements of this offence," they wrote.

The prosecutors also filed notices that they will call fingerprint and ballistics experts to testify.

Also, on September 26th, another Rapid City, South Dakota member of AIM was provided a court appointed attorney as a material witness. Thelma Rios Conroy, whose apartment was alleged used for interrogative purposes on or around December 11, 1975, and where the rape of Annie Mae Aquash was alleged to have occurred was appointed an attorney by U.S. magistrate Veronica Duffy.

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