Judge orders 1 trial for both 1975 AIM slaying defendants

By Carson Walker
Sioux Falls, South Dakota (AP) 1-09

Dick Marshal

Two men charged with the 1975 slaying of a woman on the Pine Ridge Reservation can be tried together, a magistrate judge has ruled in denying their requests for separate trials.

John Graham and Richard Marshall have pleaded not guilty to charges they committed or aided and abetted the first-degree murder of Annie Mae Aquash.

They’re scheduled to stand trial together in Rapid City starting Feb. 24 – 33 years after her body was found in the Badlands near Wanblee.

Marshall was indicted in August, five years after Graham and Arlo Looking Cloud were initially charged.

Looking Cloud was convicted in 2004 for his role in Aquash’s murder and sentenced to life in prison. He is cooperating with the government in its case against Graham and Marshall.

Witnesses at Looking Cloud’s trial said he, Graham and Theda Clarke drove Aquash from Denver in late 1975 and that Graham shot Aquash, a fellow Canadian, 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 acknowledged being in the car from Denver.
Prosecutors accuse Marshall of providing the handgun and shells that Graham used to killed Aquash on orders from American Indian Movement leaders who suspected she was a government informant.

Attorneys for Graham and Marshall filed motions for separate trials.

Graham’s lawyer, John Murphy, argued his client’s constitutional rights will be violated if the men are tried together because statements made by Marshall will incriminate both men, and Marshall is not expected to testify so he can’t be cross-examined.

Murphy also wrote that such statements would otherwise not be admitted in Graham’s trial, and the two men will give defenses that could hurt each other’s case.

Marshall’s attorney, Dana Hanna, also argued that evidence would be included against his client if both men are tried together but wouldn’t be admitted if Marshall were tried separately.

Hanna also argued that the government has a stronger case against Graham, which will hurt Marshall’s chances for a fair trial.

Federal prosecutors Marty Jackley and Bob Mandel wrote in their responses that the law allows Graham and Marshall to be tried together because they’re charged with taking part in the same crime.

In her 44-page order, U.S. Magistrate Judge Veronica Duffy of Rapid City agreed after concluding the law does allow jurors to consider both men’s cases together.

“Mr. Graham and Mr. Marshall are charged with committing or aiding and abetting in the commission of the same crime: the murder of Annie Mae Aquash. Neither defendant has alleged enough, without more, to demonstrate the kind of ‘severe’ or ‘compelling’ prejudice necessary to warrant severance,” she wrote.

“Specifically, the court concludes that the two defendants’ defenses are not mutually antagonistic and that there is no basis to believe that the jury cannot or will not compartmentalize the evidence against each defendant or that the jury will become confused.”

Some of the statements in question are general enough they wouldn’t hurt the other defendant, and other statements could be edited to prevent one man from incriminating the other, the judge concluded.

She ordered the attorneys to submit any such redacted versions of written or recorded evidence at least 15 days before the trial so there’s enough time to review them.


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