Aquash murder trial delayed until jurisdictional issues resolved

By Carson Walker
Rapid City, South Dakota (AP)

A federal judge on May 5 delayed the trial of two former American Indian Movement activists until a higher court rules on an appeal over his dismissal of one of the three counts in the indictment.

The ruling from U.S. District Judge Lawrence Piersol came one week before John Graham and Richard Marshall were to stand trial for the December 1975 slaying of Annie Mae Aquash. Her body was found in February 1976 in South Dakota's Badlands on the Pine Ridge Reservation.

Marshall and a prosecutor had requested a 60-day delay, but Piersol's ruling sets no specific date. He said he will set a new trial date after a ruling from the 8th U.S. Circuit Court of Appeals.

If the appeals court doesn't rule within two months, he said he would consider trying Marshall separately.


Marshall and Graham were to stand trial May 12 on charges they killed or aided and abetted Aquash's slaying.

Last week Piersol dismissed an aiding and abetting charge against Graham because neither he nor Aquash belonged to a federally recognized tribe, which is required for the U.S. to have jurisdiction according to the arguments made by Graham's attorney.

Both are from Canadian tribes.

U.S. Attorney Marty Jackley appealed the dismissal and indicated May 5 he would ask that it be consolidated with an appeal filed in October when Piersol previously dismissed essentially the same charge from a 2003 indictment.

The appeals court heard arguments on that appeal April 15.

On May 5, Jackley and Marshall's lawyer, Dana Hanna, filed a joint motion to continue the case.

Graham's lawyer, John Murphy, said he doesn't care if Graham and Marshall are tried together but that he wanted Graham's case to proceed. "My client has a right to a speedy trial," he said.

But Jackley argued that if Graham is tried on the two remaining counts, there's a risk of him being tried for the same crime twice if the appeals court reinstates the third count. "There are double jeopardy concerns if we move forward," the prosecutor said. Piersol agreed: "That's my view too."

The judge urged Jackley to get some indication from the 8th Circuit on whether the two remaining counts would stand up, since they also require the government to show that either Graham or Aquash had some American Indian blood.

Piersol reiterated that if the U.S. ultimately cannot prosecute Graham, the state of South Dakota would have the option.

At the hearing, Marshall and Graham wore jail uniforms and sat between their lawyers. The small courtroom was packed with family, friends and people from the legal community.

Marshall, a Lakota from Pine Ridge, was indicted in August, five years after Graham and Arlo Looking Cloud were charged.

Looking Cloud, also a Lakota from South Dakota who was living in Denver, was convicted in 2004 for his role in Aquash's death and sentenced to life in prison. He's now a government witness.

Graham is from the Tsimshian Tribe in the Yukon and fought his return in British Columbia for more than four years before he was extradited in December 2007.

Aquash was a member of Mi'kmaq Tribe of Nova Scotia. The prosecution theory is that Marshall gave a .32-caliber revolver and shells to Graham, Looking Cloud and Theda Clarke when they stopped by Marshall's house with Aquash hours before Graham shot her because AIM leaders suspected her of being a government informant.

Clarke, a Lakota who lives in a nursing home in western Nebraska, has not been charged, though she is a material witness. Her lawyer filed a motion May 4 to quash the subpoena calling for her to testify on grounds she's incompetent due to various medical and age-related ailments.

Previous Articles on Aquash Case

See Statement by Maloney/Pictou Family -
An Exorcism of Truth: The dismissal of John Graham's murder charges

See: Murder charges dropped - Dillon and Gates testimony - Rios appointed attorney

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

See:  U.S. indicts Richard Marshall in Aquash murder case

See: Feds: Aquash was bound and raped before 1975 execution

See narratives of historical NFIC investigation into Aquash murder case

See historical articles on the Aquash case at

See: Prosecutors refuse details of cooperating Witnesses

See related 2001 Editorial: It's murderers who make headlines and devastate families