SIOUX FALLS, S.D. – One of two men charged with killing a fellow American Indian Movement member more than 33 years ago has renewed his request for a separate trial, saying a jurisdiction issue for his co-defendant should not delay his case.
Richard Marshall and John Graham pleaded not guilty to charges they committed or aided and abetted the December 1975 murder of Annie Mae Aquash on the Pine Ridge Indian Reservation.
Prosecutors believe Marshall, who is asking for his own trial, gave a .32-caliber revolver and shells to Graham and fellow AIM members Arlo Looking Cloud and Theda Clarke, who stopped by Marshall’s house with Aquash hours before Graham shot her.
After several delays, Graham and Marshall were last scheduled to be tried in May.
But a week before the trial, U.S. District Judge Lawrence Piersol dismissed an aiding and abetting charge against Graham because neither he nor Aquash belonged to a federally recognized tribe, which is required for the U.S. to have jurisdiction. Both are from Canadian tribes.
Prosecutors appealed to the 8th U.S. Circuit Court of Appeals and the trial was put on hold. There’s no indication when that court will rule. If it turns out that the U.S. government cannot prosecute Graham, the state of South Dakota would have the option.
In his motion for a separate, speedy trial, Marshall’s lawyer, Dana Hanna, wrote that his client has been in jail since August, his request to be released until the trial was denied and the pending appeal does not affect his case.
“As a matter of law, the trial of the co-defendant Graham cannot proceed while the appeal is pending, but there is no legal barrier to a trial for Richard Marshall,” Hanna wrote in his filing. “It is unfair and unreasonable to leave Defendant Marshall in a legal limbo.”
Hanna and the other lawyers said they did not want to comment beyond what is in the record.
Besides the appeal and the new motion to split the cases, several other motions remain undecided, including: suppressing statements Marshall reportedly made to an investigator; limiting the testimony of a government informant; and preventing jurors from hearing statements Graham made to a medicine man who has since died and allegations he raped Aquash before she was killed.
Clarke, who is in her mid-80s and lives in a nursing home in western Nebraska, has not been charged, though she is a material witness. Her lawyer filed a motion to quash the subpoena calling for her to testify, saying she is incompetent to do so due to various medical and age-related ailments.
Clarke, Marshall and Looking Cloud are all Lakota from South Dakota.
Marshall was indicted in August, five years after Graham and Looking Cloud were charged.
Looking Cloud was convicted in 2004 for his role in Aquash’s death and sentenced to life in prison. He is now a government witness.
Graham, a Southern Tutchone from the Yukon, fought his return in British Columbia for more than four years before he was extradited in December 2007.
Aquash was a member of Mi’kmaq Tribe of Nova Scotia. Her family exhumed her body from an Oglala cemetery in 2004 and returned it to Canada.
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