Defense: Alleged AIM slaying gun was with police

By Carson Walker
Fargo, North Dakota (AP) 4-09


A defense lawyer for one of two men charged with the 1975 slaying of an American Indian Movement member has accused prosecutors of putting “erroneous and untrue” accusations in a court filing because the alleged murder weapon was locked up at the time.

John Graham and Richard Marshall pleaded not guilty to charges they committed or aided and abetted the Dec. 12, 1975, murder of Annie Mae Aquash on the Pine Ridge Indian Reservation. They are scheduled to stand trial starting May 12 in Rapid City, S.D.

The government’s theory is that Marshall gave a .32-caliber revolver and shells to Graham, Arlo Looking Cloud and Theda Clark, who stopped by Marshall’s house with Aquash around Dec. 12, 1975.

According to court testimony, hours later, after taking her to a cliff in the Badlands, Looking Cloud gave Graham the gun, he shot Aquash as she prayed, and then the two men buried the weapon nearby under a bridge and it never was found.

At the time, Marshall was awaiting trial for killing Martin Montileaux on March 1, 1975, a crime for which he was later convicted.


Prosecutors asked the judge to allow evidence that the .32-caliber pistol used to kill Aquash could have been the same one seized when Marshall was arrested for the Montileaux murder.

But Marshall’s attorney, Dana Hanna, responded that his client couldn’t have had the gun when Aquash was killed because it was in placed in police custody in March 1975 and offered as evidence at the April 1976 trial in which Marshall was convicted of killing Montileaux.

Hanna included with his filing a court transcript of the trial in which South Dakota Highway Patrolman Merlyn Muir testified he recovered the gun after Marshall was arrested.

After the shooting, law enforcement officers chased and caught a 1968 Ford carrying Marshall and seven other people.

Muir said he found the .32-caliber revolver under the right front seat. Four other guns also were seized from the car, including a .22-caliber pistol used to kill Montileaux.

Hanna argued that the .32-caliber pistol was never directly tied to Marshall.

And a receipt showing the car’s release to a woman on June 1, 1975, does not indicate if any of the guns were returned, only the car’s “contents,” he wrote.

The transcript of Muir’s testimony shows that the .32-caliber gun was offered as an exhibit. It was not received into evidence because it played no part in the Montileaux case, Hanna wrote.

The defense lawyer wrote that such “easily discoverable and available facts” prove Marshall didn’t have access to the gun from March 1975 to April 1976.


“Obviously, it could not have been the gun that was used to kill Anna Mae Aquash on December 12, 1975,” Hanna wrote.

“It is demonstrably, provably, false, based upon the court records,” he said in an interview.

U.S. Attorney Marty Jackley is not allowed to comment on pending cases.

In his motion, Hanna argued that besides the gun, prosecutors also should not be allowed to tell jurors about Marshall’s conviction for the Montileaux murder.

He included the Montileaux trial transcript of neurosurgeon Dr. Edward James, who testified that Montileaux was shot in the neck from the front and the bullet severed his spinal cord, which paralyzed him, then lodged in his shoulder. He died days later of pneumonia.

Hanna argued the government wants to include the Montileaux murder on grounds the circumstances are similar, but Aquash was killed with a bullet to the back of the head. The person who shot Montileaux was facing him, he wrote.

“The facts of the defendant’s prior offense have absolutely no connection or relevance to the killing of Anna Mae Aquash,” Hanna wrote.

Clarke, who lives in a western Nebraska nursing home, has not been charged. Looking Cloud was convicted in 2004 for his role in Aquash’s murder and sentenced to life in prison.