Murder charges dropped in Aquash case; Dillon and Gates testimony; Rios appointed attorney

(Breaking News: 10-03-08: In a last minute decision by a federal judge on Oct. 3rd, federal authorities have confirmed that the trial of John Graham will be postponed because of a technical flaw in the indictment regarding Jurisdiction. Graham in a recent motion, claimed that because he is not an American Indian as defined by U.S. statutes, the U.S does not have jurisdiction over him in this case. The murder case against Graham was dismissed, but new charges were filed shortly after the decision by Federal Judge Lawrence Piersol )

Pathologist to testify, prosecutors argue on witness statements on rape made by Graham to Frank Dillon and the late Al Gates.

By Carson Walker
Sioux Falls, South Dakota (AP) 9-08

Federal prosecutors plan to have a Minneapolis pathologist testify about the autopsy he did on Annie Mae Aquash after her body was found in 1976 on the Pine Ridge Reservation.

John Graham was scheduled to stand trial Oct. 6 in Rapid City on a charge he shot Aquash, a fellow Canadian and member of the American Indian Movement (AIM), two months earlier. This case will now be rescheduled according to recent court rulings on October 3.

Graham’s lawyer, John Murphy, had asked the judge to dismiss the case, arguing that U.S. courts do not have jurisdiction because the accused and victim were Canadians. The issue is a technical one, in which Murphy claimed U.S. prosecutors had not proven that Graham was an Indian under U.S. law, and that if they could, the indictment did not indicate that he was one.

Graham is one of three AIM members indicted for Aquash’s slaying. 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. Marshall is scheduled to stand trial Feb. 24 in Sioux Falls on a charge of aiding and abetting.

United States magistrate Veronica Duffy on September 26th, 2008 provided a court appointed to Thelma Rios. Rios is accused of allowing an empty Knollwood apartment she owned in Rapid City, South Dakota to be used to hold Aquash on December 11th, 1975. According to federal witnesses cooperating in the case, Aquash was brought to the Rios' Knollwood apartment, tied up where she was held in a bedroom and alleged raped by John Graham and forced to cut off and remove the labels from her clothes. 
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, who lives in a nursing home in western Nebraska, has not been charged.

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

A rancher found her unidentified body Feb. 24, 1976, north of Wanblee.

Federal prosecutors Marty Jackley and Bob Mandel filed a notice Sept. 24, that they will call Dr. Garry Peterson to the stand as an expert witness in Graham’s trial.

He’s the Minneapolis forensic pathologist who performed the second autopsy on Aquash and found that she was shot in the back of the head with a .38-caliber handgun and there was evidence she had been raped or had sex shortly before her death.

He ruled the death a homicide.

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

Murphy has argued 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.

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.

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 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-caliber 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 offense,” they wrote.

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

Murphy has asked that the judge dismiss the case or decide it without going to trial.

“For this court to have jurisdiction over this case, either Mr. Graham or Ms. Aquash have to be recognized as an ‘Indian.’ The threshold inquiry to determine whether a person is ‘Indian’ under federal criminal law is whether the person is a member of a federally recognized Indian tribe,” he wrote.

Graham, a Southern Tsimshian from the Yukon, fought his return to South Dakota under house arrest in Vancouver, British Columbia, but was extradited in December following the refusal by the Supreme Court of Canada to review his case.

Aquash was a member of the Mi’kmaq Tribe of Nova Scotia. Her family exhumed her remains from an Oglala grave in 2004 and reburied them in her native Nova Scotia.

Prosecutors have said some of the AIM leaders ordered Aquash’s killing late in 1975 because they suspected she was a government informant. Those leaders have denied the accusation and blamed the government for her death. Federal authorities also denied any involvement.

Jackley and Mandel also filed a response to an earlier request by Murphy to prevent jurors from hearing statements Graham made to Al Gates, a medicine man who has since died.

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

But the prosecutors wrote that Graham’s statements to Gates and other witnesses “constitute direct admissions,” including that he was present when Aquash was killed, “was having a hard time with what he had done” to Aquash and sought spiritual help “to make up for it.”

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