Graham arraigned on new murder charges in Aquash case

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By Carson Walker
Sioux Falls, South Dakota (AP) 10-08

A Canadian man made his initial court appearance October 3rd in Rapid City on new charges he killed a fellow American Indian Movement member 32 years ago – hours after a judge dismissed the indictment against him.

John Graham was scheduled to stand trial Oct. 6 in Rapid City on a charge of first-degree murder for the 1975 shooting death of Annie Mae Aquash on the Pine Ridge Reservation.

The trial was canceled, but federal prosecutors filed the fresh criminal complaint within hours of the judge’s ruling. They have 10 days to hold a preliminary hearing or bring a new indictment against Graham.

In the complaint, Graham is charged with three alternative counts of first-degree murder for committing and aiding and abetting others in the killing of Aquash on or about Dec. 12, 1975, near Wanblee, according to U.S. Attorney Marty Jackley.

The complaint alleges Graham and Aquash are both Indians. The charges carry a penalty of life in prison.

Graham appeared in magistrate court in Rapid City on the new charges. A detention hearing was set for Oct. 10. He is in the Pennington County Jail.

Graham is from the Tsimshian tribe in the Yukon and for four years fought his return to South Dakota in Vancouver, British Columbia. He was extradited in December after the Supreme Court of Canada refused to review his case.

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

U.S. District Judge Lawrence Piersol filed his response Oct. 3 to a request from Graham’s lawyer, John Murphy, that the indictment be dismissed on grounds the United States didn’t have jurisdiction.

Graham and Aquash were Canadian citizens and members of Canadian tribes, but the indictment doesn’t show that either is a member of a federally recognized American Indian tribe, which the law requires, he argued.

Jackley and Assistant U.S. Attorney Bob Mandel argued at a hearing Oct. 2 that the indictment was sufficient because the other man indicted and already convicted, Arlo Looking Cloud, does fit the definition of Indian.

 

Looking Cloud is an Oglala Lakota originally from Pine Ridge. The indictment would allow jurors to find that Graham aided and abetted Looking Cloud, the prosecutors argued.

Piersol rejected that.

“There is no authority for this proposition. The aiding and abetting statute is simply another means of convicting someone of the underlying substantive offense, which in this case is murder,” he wrote.

 “There is no dispute that the superseding indictment fails to set forth Graham’s Indian status. An indictment must set forth the essential elements of the offense charged or it is fatally defective.”

“There is no dispute that the superseding indictment fails to set forth Graham’s Indian status. An indictment must set forth the essential elements of the offense charged or it is fatally defective.”

U.S. Attorney Marty Jackley said Canada does not have jurisdiction, so having that country handle the case is not possible.

He argued the indictment includes the required elements about the crime, where it happened and who was involved. And it’s broad enough that jurors do not have to find that Graham was the trigger man, but rather could convict him of aiding and abetting the murder, Jackley said.

U.S. Attorney Marty Jackley and Assistant U.S. Attorney Bob Mandel filed their response Sept. 23 to a request from Graham’s lawyer, John Murphy, to dismiss the case on grounds U.S. courts don’t have jurisdiction because the accused and victim were Canadians.

Graham and Aquash are of North American Indian descent, both were affiliated with the Oglala Lakota Sioux Tribe as AIM members, both took part in Lakota spiritual ceremonies, Graham held himself up as Clarke’s nephew and an enrolled Lakota member and Aquash was married in a traditional ceremony, they wrote.

And “because Defendant Graham aided and abetted an Indian (Looking Cloud, Clarke and Marshall) in the commission of the murder of Anna Mae Aquash, this Court has jurisdiction,” Jackley and Mandel argued.

But Murphy said grand jurors were not presented with evidence alleging that either Graham or Aquash was a member of a federally recognized Indian tribe, a requirement under U.S. criminal law.

Murphy said he had no comment on the decision or the new complaint.

Jackley said he didn’t know when a new trial could be set.

“I’m disappointed that the matter was not able to be tried to a jury (starting Oct. 6). However, I believe that the concerns expressed in the court decision regarding the April ‘03 indictment have been satisfied by the filing of the criminal complaint. And that I look forward to ultimate justice being served for the family of Annie Mae Aquash,” he said.

One of Aquash’s two daughters, Denise Maloney Pictou of Halifax, Nova Scotia, said earlier family members were preparing to travel to Rapid City for the trial. She said Oct. 3 they would wait to comment about the judge’s decision.

Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term but could qualify for parole.

Apparently he was ready to testify at Graham’s trial.

Looking Cloud was at a Louisiana prison but his status with the federal Bureau of Prisons indicates he’s “in status” and he’s currently listed as an inmate in a western South Dakota jail.

A third AIM member, Richard Marshall, was indicted separately in August and is scheduled to stand trial in February in Sioux Falls on a charge of aiding and abetting Aquash’s murder.

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

Clarke, who lives in a nursing home in western Nebraska, has not been charged.

Graham has denied killing Aquash but acknowledges being in the car from Denver.

Some speculated Aquash was killed by AIM members because she knew some of them were government spies, while others said she was executed because she herself was an informant. Federal authorities have said Aquash was not an informant and they had nothing to do with her death.

Aquash, 30, was among the Indian militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973 that included an exchange of gunfire with agents who surrounded the village.

“This issue isn’t one that can be cured by amendment,” he said, adding that the case should be dismissed before a costly, lengthy trial.

Jackley disagreed.

“It is sufficient for the trial to move forward on Monday,” he said.

Graham, a 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. Her family had her remains exhumed from an Oglala grave in 2004 and reburied in her native Nova Scotia.

Looking Cloud was convicted in 2004 and sentenced to a mandatory life prison term. A third AIM member, Richard Marshall, is scheduled to stand trial in February on a charge of aiding and abetting.

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

Clarke, who lives in a nursing home in western Nebraska, has not been charged.

Graham has denied killing Aquash but acknowledges being in the car from Denver.

Some speculated Aquash was killed by AIM members because she knew some of them were government spies, while others said she was executed because she herself was an informant. Federal authorities have repeatedly denied any involvement.

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

See related article: Murder charges dropped in Aquash case - Dillon and Gates testimony - Rios appointed attorney

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

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

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

See narratives of historical NFIC investigation into Aquash murder case

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

See related article: Prosecutors refuse details of cooperating Witnesses

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

 

 

 

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