Feds: gun should be part of 1975 AIM slaying trial

By Carson Walker
Sioux Falls, South Dakota (AP) 4-09


Jurors are entitled to hear evidence that one of two men charged with killing a woman in 1975 had a gun in his possession earlier that year similar to the murder weapon, prosecutors argued.

John Graham and Richard Marshall pleaded not guilty to charges they committed or aided and abetted the murder of Annie Mae Aquash on the Pine Ridge Reservation when they were all active with the American Indian Movement.

Graham and Marshall are scheduled to stand trial starting May 12 in Rapid City.

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

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, according to court testimony.

At the time, Marshall was awaiting trial for shooting Martin Montileaux early in the morning on March 2, 1975, in the restroom of a Scenic bar. Montileaux died March 7, 1975. Marshall was later convicted. Russell Means was acquitted.

Prosecutors earlier 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, argued that his client couldn’t have had the gun when Aquash was killed because it was placed in police custody in March 1975 and offered as evidence at Marshall’s April 1976 trial.

Hanna accused prosecutors of putting “erroneous and untrue” accusations in their court filing and 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.

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.

He 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.

U.S. Attorney Marty Jackley filed a response late Monday arguing that the government does not have to prove that the gun in the car with Marshall in March 1975 and the pistol used to kill Aquash nine months later were the same weapon.

“Evidence that a defendant possessed a firearm on a previous occasion can be relevant to show knowledge and intent, irrespective of whether they are the same firearm,” he wrote.

Jackley argued that the .32-caliber pistol was found on the same side of the car as Marshall exited, the Montileaux and Aquash killings were similar in that both were shot in the head and neck area, and there’s no record of the .32-caliber gun being tested or entered as evidence in Marshall’s trial.

Besides evidence of the gun, prosecutors have also asked the judge to allow jurors to hear evidence that Marshall was awaiting trial for the Montileaux murder when Aquash was killed and was ultimately convicted for it.

Aquash was from Nova Scotia. Graham is from the Yukon and fought his return to South Dakota in British Columbia until his extradition in 2007. 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.



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