Judge splits decision on witnesses in Aquash murder case

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


John Graham
A U.S. federal magistrate told prosecutors to turn over a few more details in the case against a Canadian man charged with a 1975 killing but ruled against John Graham in his request for other information.

Graham's first-degree murder trial is scheduled to start Oct. 6 in Rapid City, S.D., for the slaying of fellow Canadian Annie Mae Aquash on the Pine Ridge Reservation.

Both were American Indian Movement (AIM) 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 Clark, drove Aquash from Denver and Graham shot Aquash in the Badlands as she begged for her life.

A third AIM member, Dick Marshall, was indicted during August on charges he aided and abetted the killing.

Graham’s lawyer earlier asked for details of “expense reimbursements" of $69,066 and $49,083 to Serle Chapman and Darlene (Kamook) Nichols. He also sought an unredacted copy of an FBI report indicating an unnamed informant saw Aquash alive Feb. 12, 1976, two months after prosecutors believe she was killed.

Government lawyers responded Chapman and Nichols were not paid informants but co-operating witnesses who were reimbursed for having to relocate because of "harassment, retribution and retaliation” stemming from their co-operation. As for the FBI informant’s name, the government is entitled to protect that person’s identity, they argued.

Federal Magistrate Veronica Duffy has filed an order requiring the government to give the defense details of the $49,083 reimbursement to Nichols if she will testify at Graham’s trial. Otherwise, they do not have to disclose the information.

Nichols testified at Looking Cloud's trial.

Chapman did not testify earlier but if he will be a witness at Graham’s trial, prosecutors must also have more documentation ready to give the defence regarding that reimbursement, Duffy ruled.

The defense also sought the date of a letter written by Chapman’s wife. Duffy wrote if prosecutors have the envelope, they must turn it over. Otherwise, they are not obligated to disclose anything else regarding that request, she wrote.

The defense is expecting that Chapman will testify about a 2001 trip to Canada, set up by the late Vernon Bellecourt to improve upon Graham’s alibi. A conversation recorded by a cassette tape recorder sitting on a table, that Graham is aware of and acknowledges on the tape, was turned over to his lawyer as part of the discovery process.

The defense is expecting that Chapman will testify about a 2001 trip to Canada, set up by the late Vernon Bellecourt to improve upon Graham’s alibi. A conversation recorded by a cassette tape recorder sitting on the table that Graham is aware of, and acknowledges on the tape, was turned over to his lawyer as part of the discovery process.

The defense earlier identified Chapman and Nichols in its motion but the prosecutors and judge used aliases. The prosecutors said they didn’t include the names to protect their safety.

Nichols, now a co-owner of a Subway franchise on the Pine Ridge Reservation was forced to move twice because of security concerns. She was arrested along with Aquash in November 1975 following the “Marlon Brando Moter Home Bust” in Vale, Oregon. Both Dennis Banks, and Leonard Peltier fled the scene.

Chapman, is a world renowned photographer and author, who once brought the clemency plea of Leonard Peltier to the attention of the British Parliament during the 1990’s.

“These individuals were not paid informants and no payments were made to them to work for the United States. The cooperation provided by them was not contingent upon receiving payment from the United States,” Jackley and Mandel wrote.

Regarding Graham’s request for the name of an informant who reported seeing Aquash alive days before her body was found, Duffy gave lawyers on both sides until Aug. 8, to privately show her more details about the person before she rules.

“Including the known or suspected identity of the witness, whether the witness is expected to testify, the expected substance of the witnesses’ testimony and whether the witness was a central participant or observer in the events which will be described at trial, or a mere tipster for this single, discrete report,” she wrote.

“Given the date of discovery of Ms. Aquash's body on Feb. 24, 1976, and the advanced state of decomposition of that body at the time it was discovered, it seems clear that the witness who reported seeing her alive a mere 12 days before must be mistaken. But that is not the end of the inquiry,” Duffy wrote.

Prosecutors have said they believe she was killed there around Dec. 12, 1975.

Carson Walker of the Associated Press contributed to this article.

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

See related article: Prosecutors refuse details of cooperating Witnesses

See narratives of historical NFIC investigation into Aquash murder case.

See other historical articles on the Aquash case at jfamr.org.

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